“Waiting For Mr. Roberts”: Is There A Constitutional Right To Contraception?
Is there a constitutional right to privacy underpinning the right to contraception? Suddenly, in this political climate, you can’t be sure, no matter what the U.S. Supreme Court said in 1965.
The high court ruled 7-2 in Griswold vs. Connecticut the state law forbidding the use of contraceptives was unconstitutional, in part because of due process, but mainly because it violated “the right of marital privacy.”
But the court of nearly 40 years ago that produced Griswold, the Warren Court, was one of the country’s most liberal, far more liberal than the current court and its consistent 5-4 conservative majority.
And Griswold’s finding of a right of privacy hiding in the “penumbra” of the Bill of Rights has been mocked over the years by conservatives. There is no absolute certainty that if the issue were brought before the Supreme Court today that Griswold would survive — though there is no certainty that it wouldn’t.
As recently as 2010, Justice Antonin Scalia, a conservative paladin speaking to an audience at UC Hastings College of the Law, dismissed the Griswold ruling as a “total absurdity.”
What exactly did the Griswold ruling say?
The late Justice William O. Douglas wrote the prevailing opinion. Three other justices joined him, and three more joined the judgment for different reasons.
“The Connecticut statute forbidding use of contraceptives violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights,” Douglas wrote.
“We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs or social conditions,” he said. “This law, however, operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.
“The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents’ choice — whether public or private or parochial — is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.”
The Connecticut case “concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this [Supreme] Court, that a ‘governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.’ … Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The … very idea is repulsive to the notions of privacy surrounding the marriage relationship.
“We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system,” Douglas said. “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”
The late Justice Potter Stewart, joined by Justice Hugo Black, dissented. Stewart said the Connecticut law might be “asinine,” but he could not find anything in the Constitution to forbid it.
“Since 1879 Connecticut has had on its books a law which forbids the use of contraceptives by anyone,” Stewart wrote. “I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual’s moral, ethical and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual’s choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.”
Griswold applied to married couples, but has since been expanded by the courts to all adults.
Nearly four decades later, contraception is once again under fire. Essentially, the Obama administration ignored the old adage, “Never poke a bear with a stick.” For bear read the U.S. Catholic bishops, who don’t think contraception is proper practice for the 21st century.
In February, U.S. Secretary of Health and Human Services Kathleen Sebelius issued an interim rule, mandating health insurance plans for all employers, including religiously affiliated institutions, include coverage for birth control, sterilization and other preventive services. The rule caused outrage among Catholic leaders and top officials of the Republican Party.
Feeling the heat, Obama then announced a rule modification: Women may have access to free preventive care, including contraceptive services. But if a woman’s employer objects to birth control on religious grounds, then the insurance company will be required to offer the woman contraceptive care directly, without a co-pay.
The policy was slammed repeatedly on the campaign trail by Republican presidential contender Rick Santorum, a conservative Catholic who said even the amended rule was an attack on religious freedom.
The issue ensnared Santorum’s purportedly more sophisticated rival Mitt Romney.
When Republican senators unsuccessfully tried to enact a measure that would allow employers to opt out of any healthcare coverage to which they objected on religious or moral grounds, Romney at first told an interviewer he was “not for the bill.” When the reaction set in from conservatives, Romney said what he meant was that he “strongly supported” the Senate measure, but misunderstood the original question.
Conservative radio hammer Rush Limbaugh turned up the heat under the dispute after a young law school student testified before a congressional panel that contraception was a necessary part of women’s preventive healthcare, Limbaugh said she wanted taxpayers to pay for her having sex. He also called her a “slut” and a “prostitute.”
Last month, a group of U.S. states went further. Seven filed suit in Lincoln, Neb., contending the amended administration rule violates the First Amendment’s freedom of religion guarantee. The suit was joined by several Catholic organizations.
John Witte, Jonas Robitscher professor of law, Alonzo L. McDonald distinguished professor and director of the Center for the Study of Law and Religion Center at Emory University in Atlanta, told The Christian Post the courts probably will rule against the administration.
The Religious Freedom Restoration Act was enacted by Congress, and signed by President Bill Clinton, in 1993. The act prohibited government from putting a substantial burden on individual or group freedom of religion unless there is a compelling government interest. If there is such a compelling interest, the act said, government must show it is acting in the least restrictive way.
The U.S. Supreme Court, in a 6-3 decision in 1997, struck down most of the law. But the majority, led by Justice Anthony Kennedy, left in place the restriction on the federal government even though it excluded state actions.
That interpretation was confirmed in a unanimous 2006 Supreme Court decision involving the importation of natural drugs from South America for religious purposes. Though the natural substance was banned by federal law, Chief Justice John Roberts said in the opinion the Supreme Court agreed with the lower courts — the federal government had failed to demonstrate a compelling interest in banning the sacramental use of the drug.
That violated RFRA, Roberts said.
One bright spot for contraception defenders: Kennedy wrote the 6-3 majority opinion that struck down the Texas sodomy law in 2003, and told the government to get out of the bedroom. He often completes the 5-4 conservative majority now holding sway at the high court, but in 2003 he joined and led the court’s liberals, saying, “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the state is not omnipresent in the home.”
By: Michael Kirkland, UPI, March 11, 2012
“We The People” And America’s Future: Is Rick Perry As American As He Thinks He Is?
A few weeks ago, I wrote a piece asking whether Governor Rick Perry could call himself a Christian given his opposition to government actions to help the hungry, aged, and ill. Not surprisingly, many challenged my view of Christianity. In letter after letter they pointed out that Christ spoke to individuals, not government. My observation that He was speaking to a conquered people, not free individuals who could use their power to make a more just state, was not convincing. My reference to the prophets Micah, Amos, Jeremiah, and Isaiah, each of whom called on governmental leaders to help the poor, was dismissed as being from the “Old Testament.”
I will surely return to the issue of Christianity again, but I devote this piece to Rick Perry’s character and the character he would nurture in American citizens. Teddy Roosevelt said, “Character, in the long run, is the decisive factor in the life of an individual and of nations alike.” So what is the character that Perry embodies? What is his view of the American citizen and the citizen’s responsibility to our country and to one’s fellows?
First, Perry himself.
His persona evokes the rugged individualist. His warning to Ben Bernanke, chairman of the Federal Reserve, not to come to Texas so that he can avoid being subjected to “real ugly” frontier justice evidences a character antithetical to one of the crowning achievements of the United States — a nation under law, not men. In a phrase, he dismisses the Bill of Rights — due process, trial by jury, the right to confront one’s accuser.
The real question is not what character he would make of the United States but whether he believes in America at all. He has threatened to secede. Central to his campaign is his pledge to shrink the federal government — making it impossible for our noble nation to lead the world, to serve as the “city on the Hill.”
Perry may want to pretend that he is taking America back to a better past, but his actions are part of the movement away from nation-states, where countries are largely irrelevant. The notion that we are at the end of the need for nation-states is gaining more adherents globally. The fortunate few, commonly referred to as the Davos groupies, hang out with the other well off and well-heeled all over the world. Summering in Europe, wintering in Colorado, the global elite have more in common with and feel more loyal to their carefully connected crowd than with their fellow citizens. When one’s loyalty lies with one’s own class, where does that leave one’s country?
In declaring his wish to shrink the size of government, Perry believes that government should have as little role in people’s lives as possible. No investment in education, science research, building the railroads, highways, or sewage systems of the future. Why care about America’s future, why set inspirational goals that bring people together, if you don’t believe in “We the people”?
Nationalism, patriotism, commitment to one another are for Perry an anachronism, a thing of the past. He has not said that those with the greatest wealth, talent, and circumstances have any special responsibility to our country or their fellow citizens. He has not said we are all Americans together. Rather, he seems to be able to watch human suffering with equanimity — as though America should be a place of survival of the fittest. No Social Security, no Medicare, no unemployment insurance, no laws to protect clean air, clean water. When hurricanes, tornadoes, earthquakes, and flood destroy home and communities — no FEMA, no help. “We” are on our own.
In his book Fed Up!: Our Fight to Save America From Washington, Perry writes that the 16th Amendment, which gave birth to the federal income tax, was “the great milestone on the road to serfdom,” because it represented “the birth of wealth redistribution in the United States.”
Individualism, self-reliance, self-respect — these are great virtues, useful in many fields of endeavor. But they are not enough to sustain a nation. Virtues don’t spring into being in a moment. They need to be exercised and practiced. Nations at war need courage, quick thinking, and selflessness. Nations at peace require that sense of duty to others. No man goes into a burning building for mere money. Nor does a fierce individualism nurture the patience that a teacher requires, the love given by a hospice nurse caring for a dying man.
Citizens’ moral compasses do not stem only from their faith. Government also defines the moral standard of a nation. If we are told that blacks are worth but three-fifths of whites, many will see this as the acceptable treatment of their fellow man. Likewise, when the government declares it illegal to discriminate on the basis of race, we see that discrimination is also wrong.
When a candidate like Governor Perry boasts that he will shrink government by cutting those programs that grasp the nation’s imagination of what we can do together, he is saying that America does not need the one institution in which we make our most solemn decisions together. We need not nurture a nation of laws, nor educate the young, nor protect the elderly. Teddy Roosevelt took on the trusts, protected the environment, made America more just. The character of the nation improved with his leadership. Can it improve with Perry’s?
By: Kathleen Kennedy Townsend, The Atlantic, August 29, 2011
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