Rick Santorum Favors Making Birth Control Illegal

As he rises in the polls, at least in Iowa, it looks like Rick Santorum’s record is finally getting scrutinized. Much of it will come as no surprise to those who remember Santorum from his days in Congress, but I’m sure it will be news to most Americans. Take, for example, his position on birth control:

I pointed out that Democrats say that one of the reasons Santorum lost in 2006 was because they say he’s more conservative than mainstream America. One issue was Santorum’s opposition to the Supreme Court’s 1965 ruling that invalidated a Connecticut law banning contraception. Santorum said he still feels that a state should be able to make such laws.

“The state has a right to do that, I have never questioned that the state has a right to do that. It is not a constitutional right, the state has the right to pass whatever statues they have.  That is the thing I have said about the activism of the supreme court, they are creating right, and they should be left up to the people to decide,” he said.

“You shouldn’t create constitutional rights when states do dumb things,” Santorum said. “Let the people decide if the states are doing dumb things get rid of the legislature and replace them as opposed to creating constitutional laws that have consequences that were before them.”

Video:

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This isn’t really new for Santorum, who appears to be the kind of Catholic who wants to make Humanae Vitae the law of the land. Consider what he said in October:

Santorum says, in all seriousness, “One of the things I will talk about, that no president has talked about before, is I think the dangers of contraception in this country…. It’s not okay. It’s a license to do things in a sexual realm that is counter to how things are supposed to be.”

Santorum’s position stands in direct contradiction, of course, to the Supreme Court’s holding in Griswold v. Connecticut, in which the Court struck down a law that made it a crime to sell contraceptives to married couples. Two years later, in Eisenstadt v. Baird, the Court extended the Griswold holding to strike down a law barring the sale of contraceptives to unmarried couples.

In Griswold, Justice Douglas said:

The present case, then, 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 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.

NAACP v. Alabama, 377 U.S. 288, 307. 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. 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.

Former Senator Santorum, it seems, is perfectly fine with the state interfering the most intimate of human relationships.

FILED UNDER: 2012 Election, Policing, US Politics, , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.

Comments

  1. John Peabody says:

    “how things are supposed to be.” Yep, how things are supposed to be, according to what myself and my teachers/mentors think. You think it’s supposed to be something else? Back of the bus, pal.

  2. Ernieyeball says:

    High Road
    “…it is apparently necessary for me to state once again not what kind of church I believe in — for that should be important only to me — but what kind of America I believe in.”
    Sept. 12, 1960, presidential candidate John F. Kennedy speech to the Greater Houston Ministerial Association of Protestant ministers.

    Low Road
    “One of the things I will talk about…I think the dangers of contraception in this country…. It’s not okay. It’s a license to do things in a sexual realm that is counter to how things are supposed to be.”
    Ricky Dink

  3. FWIW, I’m a pretty devout and socially conservative Catholic who also happens to be politically libertarian. I do not share Santorum’s desire to govern the secular state with sacred precepts. I agree with the moral strictures of Humanae Vitae, but I do not believe they should have the force of law. That would be contrary to the Non-Aggression Axiom. [The only exception I make is for matters of the unborn (abortion, IVF, ESCR, etc.), because liberty and property are meaningless without life.] Santorum has respect for neither the Constitution nor federalism. You could not pay me to vote for him. My primary vote’s with Ron Paul, and my general election vote will probably be for the LP candidate (who I’m hoping will be Gary Johnson).

  4. Franklin says:

    @John Peabody: That’s exactly the phrase that sounded an alarm bell with me as well.

  5. @Ernieyeball:

    The GOP has pretty much rejected the wisdom of Kennedy’s excellent speech on religion.

  6. legion says:

    Wow. That’s been an unspoken keystone of SoCon dogma for ages, but it’s only ever been unspoken… quite literally, nobody but extremist religious nutballs even take that concept seriously, let alone speak it where sane people might hear them. If this gets traction in the regular media, it will be noted as the point where Santorum stopped being a viable “not-Mitt”.

    Also,

    “You shouldn’t create constitutional rights when states do dumb things,” Santorum said. “Let the people decide if the states are doing dumb things get rid of the legislature and replace them as opposed to creating constitutional laws that have consequences that were before them.”

    While I see the libertarian basis for this, there are (or ought to be) some things that are so painfully obvious that we shouldn’t need a separate decision in every single state to enact… We don’t need 50 separate court decisions to make it an American policy that discrimination because of someone’s race isn’t allowed. It shouldn’t take 50 separate cases to determine that the rights guaranteed by the Constitution & its amendments can’t be trampled by every other level of authority below the federal government. These “dumb things” are actually the basis of a free society, but apparently nothing is “too dumb” for Santorum.

  7. Septimius says:

    Doug, I thought you were better than this. Where’s the quote where Santorum says he “favors making birth control illegal?” Where does he ever say that he wants to make Humanae Vitae the “law of the land?” You cherry pick quotes that fit your agenda and ignore others that run counter, like Santorum saying that he thought the Texas anti-sodomy law was dumb and he would never have voted for it, but he thought that the voters in Texas had a right to pass dumb laws if they wanted to. (I haven’t read Humanae Vitae lately, but I don’t think the Catholic Church is ok with sodomy.)

    And, if you’re such a constitutional scholar you’ll know that the “right” to privacy established in Griswold in 1965 was what the Court used to justify the Roe decision in 1973. So, Santorum is absolutely right when he argues that there are unintended consequences when the Court oversteps elected legislatures and invents “rights.”

  8. Septimus,

    (1) He favors giving states the power to violate the rights of their citizens by outlawing birth control

    (2) In the second link he talks about the benefits of banning birth control and why even something as private as the sexual relationship should be subject to government regulation.

    I think the headline is totally fair.

    On the whole I think the Court’s decision and reasoning in Griswold and Eisenstadt were correct.

  9. WTH? Are the people who deny a Constitutional right to privacy unable to read the plain text of the 9th Amendment? Isn’t this exactly the kind of crap the Federalists were afraid of?

  10. Chico says:

    Santorum did not advocate outlawing birith control, he said leave the issue to the states. He is right.

    I disagree with Griswold and Roe, two substantive due process cases in which the Court substituted its value judgments for law and discretion. How can anyone read the tortured reasoning and parsing in Roe about the first trimester-second trimester-third trimester distinctions and think that it’s derived from the Constitution, common law, or any other source than legislating out of justices’ heads. Lawrence Tribe also thinks Roe is crap and there aren’t many constitional scholars of any stripe who agree with it.

    The result of settling these issues in court rather than by legislative action is almost 50 years of social division and a phony culture war.

  11. Chico,

    What gives any government the right to outlaw birth control?

  12. Chico says:

    @Eric Williams:

    Let me turn that around for you: How could anyone read the Fifth Amendment and go along with abortion? Deprivation of life without due process?

    You are spluttering that a fetus is not “alive,” but that’s a value judgment.

    The same kind of substantive due process argument could be applied to outlaw abortion that was used to legalize it, All you have to do is change your facts.

  13. Chico,

    I’ll just remind you that you are straying off topic. Nonetheless, I would point out that no Court has ever held that a fetus is entitled to the protections of the 5th Amendment

  14. Septimius says:

    Doug,

    (1) He favors giving the voters of those states the right to legislate those matters. It’s not the same thing as saying he favors making birth control illegal. If you have a quote where he states that he would vote to outlaw birth control, please provide it. In the same breath, he states that he would not have voted for Texas’ anti-sodomy law, but he believes that Texas should have the power to pass such laws if they choose to. By your logic, your headline could have been, “Santorum favors sodomy” because he states that he would never have voted for an anti-sodomy law.

    (2) Sexual relationships are already subject to government regulation. See what happens if you have sex with an underage girl. You will experience government intrusion into the most intimate of human relationships. So, don’t give me this nonsense about some inviolate constitutional right to privacy in sexual matters. Also, the age of consent varies from state to state. Further proof that states have always had the power to legislate in these matters.

  15. @Septimius:

    (1) You are noting a semantic distinction without a substantive difference, in my opinion

    (2) Equating the right of consenting adults to regulate their personal sexual practices with child rape is about the dumbest thing I’ve ever heard.

    (3) What right does any government have to ban birth control?

  16. Steve Z says:

    Doug,

    In your estimation, is it possible to be both against laws that curtail the rights of individuals to secure birth control and against a Supreme Court decision that asserts that such conduct is a Constitutional right? I think this is all that Santorum is saying.

    And yes, he probably would come out in favor of such laws. And, if a majority of people agreed with him (highly unlikely in this day and age), it would become law. But what makes a Court of 9 ivy league law grads better situated than the duly-elected representatives of the people to make such value judgments?

    These “rights” invented by the Supreme Court during the last century, that emanate from penumbras and what not, however appealing they may sometimes be, ought not be decided by the Supreme Court, and under any sane reading of the Constitution are not found therein.

    Democracy may not be the best form of government, but it is better than all of the others. I will risk the tyranny of the majority over the tyranny of the oligarchy any day. And no, that does not mean that I oppose the Bill of Rights. Those are specifically crafted exceptions that were agreed upon and adpoted with due process. I only have a problem with the courts inventing new “fundamental rights” that were not envisioned in the original document. And if contraception and abortion are fundamental rights, then let’s add those into the Constitution. I have no problem with that. But acquiescing to bad jurisprudence, simply because you agree with the outcome, is not very becoming of a lawyer.

  17. Chico says:

    @Doug Mataconis:

    What gives states the “right” to outlaw gambling, pot or heroin? It’s not a “right,” it’s police powers, best defined by legislatures.

  18. @Chico:

    So could a state pass a law saying the missionary position is the only acceptable form of intercourse?

  19. Chico says:

    @Doug Mataconis:

    All that it would take would be a change in the court and a change in the facts they find.

  20. @Chico: 1. “Right to privacy” is a terrible argument in favor of abortion. Self-ownership would be a much better starting point. 2. Even right to self-ownership would be insufficient, though, because the unborn are persons. 3. Privacy is still a constitutionally protected right. 4. I never argued in favor of abortion rights. I merely argued against a terrible interpretation of the Constitution. If you’d bothered to scroll up a handful of comments you would have known that.

  21. @Steve Z:

    I will concede that it is possible. In Santorum’s case, though, I think it’s fairly obvious how he feels about such laws (and I’ll just say I don’t necessarily believe him when he says he’d vote against a law banning sodomy, but that’s another issue).

    As to your second point, we don’t live in a democracy. We live in a Constitutionally limited Republic. Madison wrote eloquently in Federalist No. 10 about the dangers of the tyranny of the majority, and I think his words are well-taken even today. Additionally, the Bill of Rights and, later, the 14th Amendment, fundamentally changed the nature of the relationship between the government and the people, and the Federal Government and the states.

    Also, as others here have mentioned, the 9th Amendment plays a role here that conservatives who love the 10th Amendment never seem to want to acknowledge.

  22. Ernieyeball says:

    @Doug Mataconis: “The GOP has pretty much rejected the wisdom of Kennedy’s excellent speech on religion.”

    No kiddin’:
    “all Americans would be forced — forced at gunpoint no less — to listen to every David Barton message.”
    Mike Huckabee at Rediscover God Conference

    http://www.huffingtonpost.com/chris-rodda/huckabee-david-barton-gunpoint_b_842506.html

  23. @Chico: None of those vices should be illegal. Ideally, no state should have the power to make/keep them illegal.

  24. Peter says:

    Am I supposed to believe Mr & Mrs Santorum never resorted to any birth control method?

  25. Robert in SF says:

    @Eric Williams:

    I thought so too.

    Speaking as a layman when it comes to Constitutional matters:
    I thought that Americans had the Constitutional right to do things that weren’t protected by explicit inclusion in the Bill of Rights by virtue of the 9th Amendment:
    “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

    So unless the Government can show overwhelming reason for needing to outlaw something, then that activity retains its position as a Right protected by the Constitution…

    In other words, there are Rights granted by the Constitution, and Rights protected by the Constitution…birth control is a Right of the latter sort.

  26. Robert in SF says:

    @Steve Z:
    You said,

    Democracy may not be the best form of government, but it is better than all of the others.

    Isn’t that the actual definition of “best”? Being better than all the others? 🙂

  27. Septimius says:

    @Doug,

    There is absolutely a substantive difference. Do you honestly think that Santorum favors sodomy because he stated that he wouldn’t support a law that banned it? Just because he may believe that birth control is detrimental and he didn’t like the Court overstepping the Connecticut legislature in Griswold DOES NOT mean that he would support outlawing birth control! I can almost guarantee that Santorum is opposed to pre-marital sex and adultery as well, and I’m sure he can speak intelligently on why he thinks they are bad for society, but I don’t think he would ever support legislation that would ban them.

    My point was not to equate sexual behavior between consenting adults with child rape. My point was to show that all sexual activity is not beyond the realm of government intrusion, never has been, never will be. It is illegal for me to pay a woman for sex (in most states), even if we are both consenting adults. It is illegal for me to have sex with a blood relative, even if we are both consenting adults. The government can invade my privacy if I violate these laws.

    The government has the right to ban birth control if the voters in that particular state, through their elected representatives, decide that they want to ban birth control. It’s just like any other product. If the voters want to be able to purchase birth control, they can change the law.

  28. PD Shaw says:

    I don’t see any Constitutional problem with a state barring stores from selling contraceptives. Griswold as I recall (and the excerprt suggests) dealt with criminalizing the use of contraception and the dissimenation of information about contraception. That law posed a serious first amendment issue in the least, but criminalizing entirely private conduct is different from barring retail commerce. (I assume the state laws were written this way because Connecticut citizens could easily avoid the restriction by crossing the border or ordering by mail)

    I think it would be a stupid law, however.

  29. sam says:

    @Septimius:

    I can almost guarantee that Santorum is opposed to pre-marital sex and adultery as well, and I’m sure he can speak intelligently on why he thinks they are bad for society, but I don’t think he would ever support legislation that would ban them.

    Really?

    Santorum says, in all seriousness, “One of the things I will talk about, that no president has talked about before, is I think the dangers of contraception in this country…. It’s not okay. It’s a license to do things in a sexual realm that is counter to how things are supposed to be.”

    Do you honestly think that someone claiming there is a way that things are “supposed to be” in the sexual realm would not advocate for laws to enforce the way things are “supposed to be” in the sexual realm? He would say that he would be derelict to not push for such legislation.

  30. DRS says:

    I have a better idea: why doesn’t Santorum and his fellow present-day Torquemadas mind their own damn business? If they don’t want to use birth control, great – don’t. If they don’t want to impregnate women who might get abortions – then keep your belt buckled unless you’re willing to become a father with all the responsibilities that entails.

    Here’s my definition of privacy: it involves only me and maybe one other person. (And that other person is not Santorum, I hardly need say.) No federal, state or local government gets to have an opinion.

    I don’t have to justify any of my private non-criminal actions to any politician whose personal hang-ups about sex interfere with his/her thought processes.

  31. PD Shaw says:

    @Eric Williams:” “Right to privacy” is a terrible argument in favor of abortion. Self-ownership would be a much better starting point.”

    I don’t know about “terrible,” but I tend to agree. I actually think, as far as Constitutional problems go, contraception is a more difficult “right” than “abortion.”

  32. PD Shaw says:

    @Septimius, I think you have a point here about Santorum’s position being unclear, but I can’t get excited about the content of a blog’s headline; notice that Doug’s last sentence (“it seems”) concedes some ambiguity.

  33. Ernieyeball says:

    “It’s not okay. It’s a license to do things in a sexual realm that is counter to how things are supposed to be.”

    Mr. Santorum should quit tap dancing around the issue and finish the sentence.

    …how things are supposed to be according to The Pope in Rome…or…how things are supposed to be according to Rick Santorum…or…how things are supposed to be according to the Republican Party…
    Tell us all sir. How are things in a sexual realm supposed to be?

  34. PD Shaw says:

    @sam: “Do you honestly think that someone claiming there is a way that things are “supposed to be” in the sexual realm would not advocate for laws to enforce the way things are “supposed to be” in the sexual realm?”

    Yep. At the most it looks to me like Santorum doesn’t want the government to pay for contraception; or at the very least he wants to spend some portion of his Presidency jawing about contraception issues. One would scare the bejezus out of people afraid of certain poor groups increasing in size, the other would scare parents.

  35. Ron Beasley says:

    Ultra conservative Catholics like Santorum are even crazier than Evangelicals like Bachmann. We first saw that with the Teri Shiavo debacle – it was the Catholics that were pushing to keep her alive.

  36. Beavis and Butthead says:

    Beavis: “the dangers of contraception”

    Butthead: “like when the rubber breaks”
    ——–
    Ernieyeball: I couldn’t help myself. Jerk this post if you must…wait…AAAAGGGGGHHHH!!!

  37. Septimius says:

    @ Sam: Do you think a politician that speaks out about the dangers of smoking necessarily believes that cigarettes should be outlawed?

  38. legion says:

    @Beavis and Butthead:

    Jerk this post if you must

    I see what you did there…

  39. legion says:

    @Septimius: There’s a rather large difference between a politician speaking out against the dangers of X and a politician stating that X is flatly immoral and goes against the Divine Plan. The former might just be pandering for votes; the latter would absolutely attempt to have X outlawed.

  40. sam says:

    @Septimius:

    That’s unresponsive to the question asked.. And I submit that neither you nor PD@ Tuesday, January 3, 2012 at 17:32 really understand the force of natural law arguments on people like Santorum. Such arguments and the conclusions they generate are morally binding on those who accept the principle of natural law. He would be self-condemned if he did not advocate such legislation.

  41. @legion: Actually, I DO believe that contraception, fornication, sodomy, divorce, and adultery are contrary to the Divine Plan, but I DO NOT wish to compel anyone with threat of force to obey that plan. Their judgment is in God’s hands, not man’s. The only rightful purpose of government is to intervene when one person or group of people causes or threatens to cause harm to another person or group of people. Freely chosen acts, performed alone or contracted consensually, are none of a just government’s business.

  42. anjin-san says:

    Nothing new here. Conservatives want to get the government off of our backs. Except when they don’t. Sorry ladies, you think you are the mistress of your own bodies? Think again.

    After all, we are talking about a group that seems to feel the ideal relationship between a man and a woman is a wealthy white man with a trophy wife.

  43. Ron Beasley says:

    Doug, you should not be surprised – Charles Pierce:

    Precisely how many times are we going to be treated to public expressions of mock horror from Important Conservatives that 40 years of allying themselves with nativist hooligans, anti-intellectual crackpots, Christomaniacs, and the sad detritus of American apartheid finally has produced a field of presidential candidates that these same Important Conservatives find less than adequate?

  44. Septimius says:

    @Sam: I guess that morally binding stuff only applies to Presidents since Santorum spent 16 years in Congress and never once introduced any legislation to outlaw birth control.

  45. David M says:

    So if I understand correctly, Santorum is on record saying 1) that states should be able to outlaw contraception, 2) contraception is bad and 3) state laws outlawing contraception would be OK with him. And people are actually trying to defend the idea that he really doesn’t support outlawing birth control because he’s in the federal government and thinks the states should do it instead? That’s some seriously impressive mental gymnastics to avoid an uncomfortable truth there.

  46. PD Shaw says:

    @sam:” And I submit that neither you nor PD@ Tuesday, January 3, 2012 at 17:32 really understand the force of natural law arguments on people like Santorum.”

    Since Griswold was a natural law case, I’m certain that neither I nor Santorum understand it.

  47. Septimius says:
  48. lunaticllama says:

    In Republican land, freedom’s just another word for fully state regulated sexytimes.

  49. labman57 says:

    Irony. The same folks who push for legislation permitting anyone to carry a concealed weapon in public are also those who want to prevent people from obtaining birth control.
    Because they believe in “protection“, they just don’t believe in “protection“.

  50. grumpy realist says:

    How many of the politicians and religious figures making loud noises about the Immorality of Birth Control are men?

    Unless you are a female and have had the heart-stopping panic of a pregnancy scare, I think it’s time to shut up about the issue. It’s sort of like the old joke about eggs and bacon–the chicken donates, but the pig is COMMITTED.

  51. Dan Griffing says:

    According to Santorum’s beliefs, hell is the same punishment for using birth control and having anything but procreative sex inside of marriage as hell should be for the mass murders of Stalin and Hitler. A President Santorum would be an enemy of American Liberty, because his moral narrow mindedness, the antithesis of America’s tolerant founding principles of individual rights–would be imposed on all of us. By Santorum’s logic, states have the right to pass segregation laws, institute religions, outlaw private property and institute socialism, or even legalize slavery within their borders. We need a president who respects the ideas of Jefferson, Madison and Washington, not an American Taliban.

  52. Gracie says:

    These are some very frighteningly limited people with an apparent strong desire to rationalize everything to make it fit their tiny, limited, self-serving, unconstitutional view of what the world and the USA should look like and be. Why more people aren’t freaking out over the incredibly poor pool of candidates is quite a mystery.