It’s Not About Contraceptives, It’s About Privacy

Do the Republican candidates believe that American citizens have a right to privacy? Someone should ask them.

Saturday night’s debate had many odd moments, but none of them perhaps more odd than the exchange that was prompted largely by Rick Santorum’s previous comments about contraceptives and whether or not the states had the right to ban them. It was when George Stephanopolous turned the question on Mitt Romney, though, that things got interesting:

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STEPHANOPOULOS: Governor Romney, do you believe that states have the right to ban contraception? Or is that trumped by a constitutional right to privacy?

ROMNEY: George, this is an unusual topic that you’re raising. States have a right to ban contraception? I can’t imagine a state banning contraception. I can’t imagine the circumstances where a state would want to do so, and if I were a governor of a state or…

STEPHANOPOULOS: Well, the Supreme Court has ruled —

(CROSSTALK)

ROMNEY: … or a — or a legislature of a state — I would totally and completely oppose any effort to ban contraception. So you’re asking — given the fact that there’s no state that wants to do so, and I don’t know of any candidate that wants to do so, you’re asking could it constitutionally be done? We can ask our constitutionalist here.

(LAUGHTER)

(CROSSTALK)

STEPHANOPOULOS: I’m sure Congressman Paul…

(CROSSTALK)

ROMNEY: OK, come on — come on back…

(CROSSTALK)

STEPHANOPOULOS: … asking you, do you believe that states have that right or not?

ROMNEY: George, I — I don’t know whether a state has a right to ban contraception. No state wants to. I mean, the idea of you putting forward things that states might want to do that no — no state wants to do and asking me whether they could do it or not is kind of a silly thing, I think.

(APPLAUSE)

STEPHANOPOULOS: Hold on a second. Governor, you went to Harvard Law School. You know very well this is based on…

ROMNEY: Has the Supreme Court — has the Supreme Court decided that states do not have the right to provide contraception? I…

STEPHANOPOULOS: Yes, they have. In 1965, Griswold v. Connecticut.

ROMNEY: The — I believe in the — that the law of the land is as spoken by the Supreme Court, and that if we disagree with the Supreme Court — and occasionally I do — then we have a process under the Constitution to change that decision. And it’s — it’s known as the amendment process.

And — and where we have — for instance, right now we’re having issues that relate to same-sex marriage. My view is, we should have a federal amendment of the Constitution defining marriage as a relationship between a man and a woman. But I know of — of no reason to talk about contraception in this regard.

STEPHANOPOULOS: But you’ve got the Supreme Court decision finding a right to privacy in the Constitution.

ROMNEY: I don’t believe they decided that correctly. In my view, Roe v. Wade was improperly decided. It was based upon that same principle. And in my view, if we had justices like Roberts, Alito, Thomas, and Scalia, and more justices like that, they might well decide to return this issue to states as opposed to saying it’s in the federal Constitution.

And by the way, if the people say it should be in the federal Constitution, then instead of having unelected judges stuff it in there when it’s not there, we should allow the people to express their own views through amendment and add it to the Constitution. But this idea that justice…

STEPHANOPOULOS: But should that be done in this case?

ROMNEY: Pardon?

STEPHANOPOULOS: Should that be done in this case?

ROMNEY: Should this be done in the case — this case to allow states to ban contraception? No. States don’t want to ban contraception. So why would we try and put it in the Constitution?

With regards to gay marriage, I’ve told you, that’s when I would amend the Constitution. Contraception, it’s working just fine, just leave it alone.

(LAUGHTER)

(APPLAUSE) STEPHANOPOULOS: I understand that. But you’ve given two answers to the question. Do you believe that the Supreme Court should overturn it or not?

ROMNEY: Do I believe the Supreme Court should overturn…

(SOMEONE IN AUDIENCE YELLING)

ROMNEY: Do I believe the Supreme Court should overturn Roe v. Wade? Yes, I do.

As a preliminary matter, let’s not leave aside the fact that Romney is a graduate of Harvard Law School and that even in 1975, if not especially then, the decade old Griswold decision would have most assuredly been part of the Constitutional Law curriculum. it is, after all, the opening case in a line that defined the limits of governments ability to regulate the private lives of its citizens and the penultimate case at the time, Roe v. Wade, was only three years old at the time. Perhaps Romney has forgotten law school in the intervening 36 years, but it was odd indeed that any lawyer would have to ask if the Supreme Court had ever ruled on the issue of whether or not states had the authority to ban the purchase of contraceptives. Of course, Romney has never really practiced law.

Steve Benen pointed out yesterday, though, what everyone seems to have missed regarding this exchange, largely because Stephanopolous completely mangled the question and seemed to want to get into a game of “Who’s smarter” with Romney rather than doing his job as a moderator:

In 1965, the Supreme Court ruled in Griswold v. Connecticut that a state cannot deny couples access to birth control. The 7-2 ruling immediately became controversial because of its rationale — the justices based the ruling on a “right to privacy” that is not explicitly in the Constitution and had not been embraced by the court beforehand.

Eight years later, the Supreme Court used the Griswold ruling as a stepping stone for Roe v. Wade — Americans’ right to privacy extends to include the ability to terminate unwanted pregnancies. The Roe ruling in 1973 used Griswold as a foundation. As everyone involved in the debate knows, one ruling led to the other.

Romney surely understands this. He graduated from Harvard Law School in 1975. But Romney was probably playing dumb last night because he knew the question Stephanopoulos was getting at, but didn’t ask: was the high court wrong on Griswold? Or more to the point, does the Constitution include a right to privacy or not?

Because Stephanopoulos flubbed the discussion, we don’t really know the answer to those questions, though Romney’s desire to see Roe overturned is noteworthy in and of itself (most Americans take the opposite view).

Moreover, as Irin Carmon points out in a column at Salon, one’s answer on the question of whether or not the Constitution includes some kind of a right to privacy implicates a whole host of issues that go beyond a 46 year old Supreme Court decision:

[T]he constitutional dispute surrounding the Supreme Court’s 1965 decision on state contraception bans is far from academic or theoretical – it underlies important later recognitions of sexual and reproductive privacy, including Roe v. Wade and Lawrence v. Texas, which overturned state sodomy laws. Romney obviously knows that. Not only does he have a degree from Harvard Law School, as Stephanopoulos pointed out, but the co-chair of his legal advisory committee, Robert Bork, was kept from the Supreme Court partly because of his stance on Griswold.

(…)

Romney might even get a break on a question he called “kind of a silly thing.” His audience may not remember that, in fact, states once did firmly ban contraception and information about it for even married couples, as the Connecticut statute in Griswold did. But it’s not silly to ask him his stance on either a settled legal doctrine or a set of current policy issues surrounding reproductive health. Should contraception continue to be fully covered under the Affordable Care Act (the existence of which he opposes)? Can pharmacists decline to fill prescriptions for Plan B (he wants to make it easier for them not to)? What about the defunding of Planned Parenthood, which provides contraceptive services to millions of people (Romney wants it to happen).

Additionally, the question of where Romney, or any of the other candidates stands on this issue is an important indicator of what kind of judicial nominees they might select. As things stand, the person who takes takes the Oath Of Office on January 20, 2013 will potentially have the chance to fill as many as two or three seats on the Supreme Court. This could possibly include the seats held by the Court’s liberal stalwart Ruth Bader Ginsburg, its conservative stalwart Antonin Scalia, and the perennial swing vote Anthony Kennedy, all three of whom are in their 70s. Notwithstanding the difficulties of the confirmation process, this would give the President the chance to remake the Court for decades. It would seem that this alone makes it relevant to know whether or not a Presidential candidate believes that the Constitution includes a right to privacy as the Court found in Griswold.

Of course, Griswold itself is not without it’s weaknesses. The opinion written by Justice Douglas purports to find a right to privacy in the “penumbras and emanations” of the First, Third, Fourth, and Fifth Amendments. Even for someone such as myself who supports the result in the case, it’s not exactly an example of strong legal reasoning when you really look at it critically. Other legal scholars have suggested that the Court would have been on more solid ground if it had grounded its decision in the 9th Amendment, which provides:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This, of course, is the Amendment that Robert Bork once famously called an “ink blot.” Coincidentally, Bork is one of Mitt Romney’s policy advisers. Take from that what you will, but perhaps it tells us something about whether or not Mitt Romney believes that there are any rights other than those explicitly set forth in the Constitution.

This may not be the most important question in the election, but it’s not irrelevant issue. Hopefully, someone more skilled at their job than George Stephanopolous will ask the candidates about it at some point.

FILED UNDER: Campaign 2012, Law and the Courts, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds 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. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Ron Beasley says:

    The Bible thumpers of the Evangelical Right, Catholic Church and Mormons do not believe in privacy. Privacy is not mentioned in the Constitution for a very good reason – when the Constitution was written privacy referred to going to the toilet (outhouse). Not something you would need to call out in the Constitution.

  2. mantis says:

    The opinion written by Justice Douglas purports to find a right to privacy in the “penumbras and emanations” of the First, Third, Fourth, and Fifth Amendments. Even for someone such as myself who supports the result in the case, it’s not exactly of strong legal reasoning when you really look at it critically.

    Indeed. That’s why I have argued for quite some time that we need a constitutional amendment guaranteeing individuals’ right to privacy. I don’t think it will ever happen, but it should. I think the founders did believe we have such a right, but could not anticipate how it would need to be guaranteed in a more general way than the Constitution as written allows.

  3. Barb Hartwell says:

    Romney is so good a dodging questions by turning them back on the person`s asking. He is so afraid of giving an opinion that might lose another vote. He would do better if he was honest. I dislike him more each day and If he ever becomes president he will be the worst on record. Actually any of the GOP besides Jon Huntsman if they became president they would be the worst in history. What a humiliation to this country.

  4. Rick DeMent says:

    I wonder how many people believe there is a right to “free association” explicitly written in the constitution.

  5. @Ron Beasley:

    This is why the leading Anti-Federalists did us a favor by insisting not only on a a written Bill of Rights, but also on the 9th Amendment which was meant to make clear that listing certain rights was not intended to deny the existence of the natural rights of man .

    Unfortunately, the Courts have indeed turned that Amendment into the inkblot that Bork mockingly called it.

  6. grumpy realist says:

    @Rick DeMent: they usually get that from “the right to peacefully assemble”.

  7. PD Shaw says:

    I think Romney understands something that Stephanopoulos doesn’t, which is that the Court only rules on the case and controversy before them. Griswold didn’t rule that there is some free-floating right of privacy or right to contraception. The majority opinion in Griswold sought to explain its summation of past precedent in a way that some justices agree with and others do not; many prefer their own explanation of the Constitution, which is why court decisions in this area average at least six opinions per case. And which is why people of a more practical bent should stay away.

    Griswold technically ruled that married people have a right of privacy against a law banning the use of contraception. I think Benan is wrong in his characterization of Griswold, the issue of access to contraception did not get taken up by the Court until 1977, after Romney graduated from law school. Even then a close examination of the case indicates that states can regulate and in certain circumstances ban contraception (or abortion), its just that the Court will closely scrutinize such legislation. If the notion of strict or moderate scrutiny and balancing tests were part of the popular lexicon, we would have a far less polarized discussion of SCOTUS decisions.

  8. @PD Shaw:

    Actually, the issue of state laws barring the sale of contraceptives to unmarried copies was decided by Baird v. Eisenstadt in 1972.

    Carey v. Population Services International deal with the issues of selling contraceptives to minors, the advertisement for sale of contraceptives, and the sale of contraceptives by anyone other than a licensed pharmacist. All three of which, the Court found to be unconstitutional.

    Yes, Griswold was not the end of the road but it was the bedrock on which the other cases were built

  9. PD Shaw says:

    The opinion written by Justice Douglas purports to find a right to privacy in the “penumbras and emanations” of the First, Third, Fourth, and Fifth Amendments. Even for someone such as myself who supports the result in the case, it’s not exactly an example of strong legal reasoning when you really look at it critically.

    I think the word you are looking for is “flabby.” Even liberal scholars don’t like the reasoning in many of these decisions; some would look to the Equal Protection Clause to note that these laws, like reality, don’t treat men and women neutrally in terms of the consequences of pregnancy.

  10. sam says:

    @PD Shaw:

    the issue of access to contraception did not get taken up by the Court until 1977

    That’s incorrect. Eisenstadt v. Baird, 405 U.S. 438 was decided in 1972. And that was a very prominent case in Massachusetts. It originated there — I was living in Massachusetts, then. Bill Baird was quite well-known for his efforts on the issue of the availability of contraception. Romney attended the Harvard Law and Business Schools at that time. He cannot have been unaware of the case.

  11. PD Shaw says:

    @Doug Mataconis: There were only three or four votes for that proposition in Eisenstadt. But part of my point was these cases dealt with the use of contraception, which as long as sex is private, poses significant concerns about arbitrariness in enforcement. It wasn’t until the later case that access, i.e. the regulation of public commerce involving contraception became an issue.

  12. Moosebreath says:

    Quoting Romney:

    “George, I — I don’t know whether a state has a right to ban contraception. No state wants to. I mean, the idea of you putting forward things that states might want to do that no — no state wants to do and asking me whether they could do it or not is kind of a silly thing, I think.”

    Funny how the converse is not viewed by many on the right as a persuasive argument when it applies to, say a government compelling one to buy health insurance because it could lead to forced purchases of a certain green vegetable.

  13. PD Shaw says:

    @sam: You have to count the votes before making broad pronouncements about their meaning.

    There were four votes (Brennan, Stewart, Douglas and Marshall) for the opinion.

    Douglas wrote separately to state that this was a “simple First Amendment case” because of the unique facts of the case (handing out a contraceptive during a lecture was a form of speech).

    Blackman and White joined the judgment, but not the opinion. They didn’t believe the prosecution proved their case and therefore would reverse the prosecution on those grounds without dealing with what they, and Romney apparently, think is an obscure Constitutional issue.

    So, it’s three to four votes in favor of a proposition; that’s generally not enough to settle an issue within the Court.

  14. ponce says:

    ROMNEY: Do I believe the Supreme Court should overturn Roe v. Wade? Yes, I do.

    That answer should put quite a few states out of Romney’s reach.

    The religious freaks can’t follow their surrendered wives into the voting booth.

  15. Rick DeMent says:

    ref=”#comment-1483985″>grumpy realist:

    Yes I know where they get it, but the right to peacefully assemble really has nothing to do with free association. Or rather you could say that that logic that get’s you from peaceful assembly to free association is arguabally much more tortured the the logic that gets you from The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated to a general right to privacy.

    I simply don’t understand then thinking that claims there is no right to privacy to be found in the constitution when the 4th amendment makes no sense without an implict understanding of a general right to privacy.

  16. MBunge says:

    @Rick DeMent: “I simply don’t understand then thinking that claims there is no right to privacy to be found in the constitution when the 4th amendment makes no sense without an implict understanding of a general right to privacy.”

    I believe the purpose of the Constitution was and is to make thing explicit, not to perpetuate implicit understandings. When people claim there’s not right to privacy in the Constitution, what they’re saying is that someone else shouldn’t be able to invoke the Constitution to enshrine their concept of privacy as the immutable law of the land.

    Mike

  17. michael reynolds says:

    Can we stop pretending that Romney believes anything? he believes he should be president. Everything else is focus group tested bull–it. He’s an utterly empty man. A nothing. A void. A nullity.

    8.6% unemployment and we are still going to beat the GOP.

  18. Ron Beasley says:

    @michael reynolds: That is to say he is a politician/sociopath!

  19. Ron Beasley says:

    Doug and all, if you want some insight I suggest you check out Bob Altemeyer’s The Authoritarians. (Warning – a really big PDF)

  20. DRS says:

    I agree with Michael. As much as other politicians duck and weave and dodge and feint, there’s something about Romney that just takes the process to a whole new level. Has he answered a question with an honest answer in his life?

    (Must have been a fun wedding: “Do you take this woman…blah, blah, blah….?” “Um, well, I think if you look, ah, at the, um, historical record we find that most, I mean, that is, a majority of men do indeed, you know, stay married when they get married, um…and so the statistics would imply, um, ah, that I would too”)

    And what puts him right over the top is his patronizing attitude as if we’re all just too stupid to realize the brilliance of his responses.

  21. sam says:

    @PD Shaw:

    @sam: You have to count the votes before making broad pronouncements about their meaning.

    PD, that’s a tad casuistic. The holding in Eisenstadt v Baird was never been challenged to my knowledge and that holding established that the right of unmarried people to possess contraception on the same basis as married couples.

    But in any event, my main point in the comment was that Romney certainly knew the state of the law, in Massachusetts, anyway, concerning contraception, and he cannot have been ignorant of Eisentstat v. Baird . And thus, this

    Has the Supreme Court — has the Supreme Court decided that states do not have the right to provide contraception? [Reading ‘prevent’ for ‘provide’]

    is just so much smoke being blown.

  22. Fiona says:

    I watched that part of the debate and even though George S. flubbed the question somewhat by trying to pin Romney down, it was clear Romney knew he was asking about Griswold and preferred not to answer. Paul certainly understood the question well enough, and replied that the Fourth Amendment guarantees a right to privacy. But Romney seemingly figured that if he talked long enough and said nothing, he wouldn’t have to elaborate on his viewpoint (provided he actually has viewpoint as opposed to a set of predefined talking points).

    Next go round, the moderators should simply ask all of the candidates, point blank, do you believe that the Constitution includes a right to privacy? I’d love to see the various answers; I think it would give us a pretty good indicator that most of them do not.

  23. Rick DeMent says:

    @MBunge:

    I believe the purpose of the Constitution was and is to make thing explicit, not to perpetuate implicit understandings.

    then what in the world was the reason for this:

    The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

    If what you are saying is true that the 9th amendment has no meaning. Further if what you say it true that there is no such thing as the Right of freedom of association since there is nothing in the the right to peacefully assemble that would give any reasonable person the explicit notion that it also includes the right to select who you are associating with.

    When i invoke the “right to privacy” I am saying that it has to be a right due to the fact that the 4th amendment has no reason to exist without an understanding that privacy is a right. (what courts have called penumbras and emanations).

    Once again if what you say is true that the 9th is the ink blot that Bork said it was, but the founders (at least the anti-federalists) wanted the 9th in there precisely to counter the argument you are making. Read the 9th again and tell me what it means if not that there are rights that are not explicitly enumerated but yet are retained by the people.

    I there is no reading of the 9th that squares with Bork’s interpretation that does not relay on personal ideology.

  24. MBunge says:

    @Rick DeMent: “If what you are saying is true that the 9th amendment has no meaning.”

    The meaning of the 9th amendment is perfectly clear. Just because the Constitution does not explicitly mention a particular right does not mean it does not exist, so you may not use the wording of the Constitution to deny someone those rights. But is does not then follow that the Constitution as written may be used as a club to promote or advance rights which are not specifically mentioned in it.

    Or to put it more plainly, no one is supposed to say “That right isn’t listed in the Constitution. Therefore, there is no such right.” But, as the phrase “retained by the people” obviously indicates, those rights are not necessarily governed by the Constitution. While no rights may be denied by the Constitution, not all rights are guaranteed and protected by it.

    Constitutional law was not meant to be the ultimate arbiter for every question of human, civil or personal rights. The infusion of legalism in the last half of the 20th century may have obscured that mindset, but it has not changed the wisdom of it.

    Mike

  25. Constitution says:

    Did no one catch the fact that he basically admitted that Ron Paul knows more about Constitutional matters than he does?

  26. Socrates says:

    This is an excellent post, Mr. Mataconis.

  27. Rick DeMent says:

    @MBunge:

    But is does not then follow that the Constitution as written may be used as a club to promote or advance rights which are not specifically mentioned in it.

    Of course not it would be pretty difficult to argue that the constitution guarantees me a right to a luxury car, but I would quarrel with your interpretation of the phrase “(rights) …retained by the people” obviously indicates that “those rights are not necessarily governed by the Constitution”.

    My first quarrel would be that is these enumerated rights are not protected by the constitution then what status does a right retained by the people have? if they are not protected by the constitution that we are back to square one, the 9th has no meaning whatsoever.

    I think if you read the debates the anti-federalists were pretty clear about what the 9th was supposed to do. If you remember the AFeds didn’t want a bill of rights because they did not want a situation where rights were being denied based on the fact that they were not specifically enumerated in the constitution, thus the inclusion of the 9th amendment. But the question arises what rights that are not specifically guaranteed in the constitution are worthy of constitutional protection. This is where the notion of penumbras and emanations comes in. And as straight forward as the idea I an constantly amazed that the idea get so much flak.

    The 4th amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. all you have to do is ask the question , why? Why should you have the right to be secure against unreasonable search and seizure if not to protect your privacy? It not hard at all to understand how a general right to privacy emanates from the 4th amendment unless you’re being obtuse. Privacy is why we have a 4th ans all the court did in this instances is to make explicit what was clearly implicit in the 4th amendment. This is not using the constitution as a club for anything, it’s simply making some common sense applications of the text to protect the rights that are not explicitly enumerated in the text, as required by the 9th.

    At the very least this logic is orders of magnitude less tortured then the idea that you have unenumerated rights but they are not protected by constitution because … well …. they are not enumerated.

  28. Barry says:

    @Ron Beasley: Or simply that they didn’t figure on this, or figured that common law and custom covered it. And/or assumed that yes, local communities could get up in your business. Remember that when the Constitution was written, some states had established churches, and their informal power had to have been tremendous.