A headline from Salon.com last week read: "Rick Santorum is Coming for Your Birth Control". Santorum is explicit that birth control is "not okay" and that state governments should have the right to make it illegal. But a closer look reveals that access to birth control (as well as other personal privacy rights) could be threatened if any Republican--including Mitt Romney--becomes the next President of the United States.
During Saturday night's Republican Presidential Debate, ABC's George Stephanopoulos asked Mitt Romney, "Do you believe that states have the right to ban contraception? Or is it trumped by a Constitutional right to privacy?"
Romney evaded the question, responding "I don't know whether a state has a right to ban contraception... Asking me whether they could do it or not is kind of a silly thing."
Romney--like Barack Obama a graduate of Harvard Law School (a fact he rarely mentions)--surely knows better. As every first year law student learns in Constitutional Law 101, many states did ban contraception until 1965 when the Supreme Court decided in one of its most famous cases, Griswold vs. Connecticut, that the Constitution implies a right of privacy that makes it unconstitutional for states to interfere in the decision of married people (later extended to all people) whether to use birth control in the privacy of their bedroom.
While it may come as a surprise to many Americans today, Romney is old enough to know that as recently as 1965 when Griswold was decided, 30 states indeed outlawed or limited the right to use birth control.
Romney's Republican colleague, Rick Santorum is less coy than Romney in addressing the issue of whether or not the Supreme Court was correct in Griswold to find a zone or personal privacy protected by the Constitution which protects things like the right to use birth control, the right to engage in consensual homosexual sex, and most controversially, the right to abortion. Santorum told ABC's Jake Tapper that the Supreme Court was wrong in Griswold and states should have a right to ban birth control, declaring that "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 (sic) they have." In a separate interview in October, Santorum stated on contraception, "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".
Now it might be easy to dismiss Santorum as an extremist outlier and assume that a President Romney would never do the same. But as Romney's evasive response to Stephanopoulos makes clear, that would be a profound mistake. Such an assumption misunderstands the politics and Constitutional principles of the right to privacy.
Most Americans probably assume that the Constitution protects the privacy of their bedroom from government interference. But the word "privacy" never appears in the Constitution. For many conservatives--including at least two Supreme Court justices (Thomas and Scalia) and perhaps as many as two others (Roberts and Alito)--that means that the Constitution provides no protection against laws prohibiting certain types of private sexual behavior. Under that view--which was the law of the land until the 1965 Griswold decision--if a state government wants to ban birth control or consensual homosexual acts (or for that matter, any other type of sexual behavior such as heterosexual oral sex) it has the legal right under the Constitution to do so.
If the next President is a Republican who gets to replace the ailing Ruth Bader Ginsburg with a judicial conservative, the Constitutional right to privacy could be a thing of the past and states could enact laws which would pass Constitutional muster restricting access to birth control or outlawing private consensual homosexual (or even heterosexual) acts.
The question of whether the Constitution protects the right of privacy in the bedroom is intimately wrapped up in the politics of abortion. Justice Douglas' majority opinion in Griswold overturning Connecticut's ban on birth control held that despite the fact that the word "privacy" does not explicitly appear in the Constitution, the "spirit" of the Bill of Rights (Douglas used the more esoteric word "penumbras") creates a right to privacy that cannot be unduly infringed including under the First Amendment (free speech), the Fourth Amendment (freedom from searches and seizures), the Fifth Amendment (freedom from self-incrimination) , and the Ninth Amendment (other non-enumerated rights). Furthermore, this right is fundamental concerning the actions of married people because "it is such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of our civil and political institutions." Several concurring opinions found other Constitutional bases for holding marital privacy to be a fundamental Constitutional right including the Due Process clause of the 14th Amendment.
In Eisenstadt v. Baird (1972) the Court extended the privacy right to use contraception to all Americans regardless of marital status.
In Lawrence v Texas (2003) by a 6-3 vote, the Supreme Court struck down as unconstitutional a Texas law (and laws on the books in 13 other states) outlawing private homosexual acts on similar right to privacy basis.
But most crucially, the Constitutional privacy right in Griswold was fundamental to the Supreme Court's decision in Roe v. Wade (1973) finding a Constitutional right to abortion. Roe held that "State criminal abortion laws...without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy."
As a result, a staple of conservative political and legal attacks against Roe v Wade has been an attack on the principle of a Constitutional right to privacy. If the Supreme Court overturns Roe v Wade, it is likely to overturn its legal underpinning which is the right to privacy. That would mean that not only could states criminalize abortion, but they could criminalize birth control and private homosexual (and even heterosexual) activity between consenting adults.
Mitt Romney has appointed Robert Bork--who was rejected for a Supreme Court post by the Senate in part because of his opposition to a Constitutional privacy right--as one of his chief legal advisors. If elected President, Bork is likely to play a key role in helping Romney select Supreme Court nominees. With four Justices already likely ready to overturn Roe v. Wade and with it, a single Romney appointment could easily end the Constitutional right to privacy.
If you care about personal privacy, there's good reason to be afraid of a Romney presidency.
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