Many people do not remember that the purchase and use of birth control products, even by married couples, was against the law in many states until 1965. Use of birth control products may again be criminalized in many states controlled by conservative lawmakers. There are those who, for the last 46 years, have worked to reverse the 1965 Griswold v. Connecticut Supreme Court finding that Americans have a fundamental right of privacy to make family planning decisions, which includes the right to use birth control contraceptives. This year conservative lawmakers in many states are again close to making the use of birth control products a crime through "personhood" legislative initiatives.
During Supreme Court Justice Sotomayor's Senate Judiciary Committee confirmation hearings in July 2009 conservative Republican Senators berated Judge Sotomayor for not rejecting the idea that the U.S. Constitution grants implied rights, such as "the right of privacy" from government intrusion into family decisions. This article was originally posted on July 23, 2009 to provide some historical perspective on the conservative Republican position that the U.S. Constitution grants no implied right of privacy, particularly the right to purchase and use contraceptive products.
We updated the post on February 18, 2011 as Republicans, who control the U.S. House of Representatives, passed a bill (H.R. 1) to completely de-fund the nation's 40-year-old family planning program, Title X. Their target of course was Planned Parenthood, an organization that provides reproductive health services as well as family planning and information about contraceptive options to women and men.
We update this post again this week on the 46th anniversary of the Supreme Court's landmark June 7, 1965 Griswold v. Connecticut decision. It is the Griswold v. Connecticut finding that gives explicit voice to the concept that the U.S. Constitution implicitly grants a "right of privacy to Americans." This right of privacy includes, but does not stop with, the private right to choose when, or whether, to have children, to choose to "home school" our children and to choose with whom we have sexual relationships -- do you remember when adultery and same sex partners were civil crimes in many states?
This year the Personhood USA organization threatens to undo the Griswold v. Connecticut decision. Personhood USA argues that a single cell fertilized egg, "from the moment of conception," is a "person" with full legal and constitutional rights. Because most birth-control pills and intrauterine devices work by preventing fertilized eggs from implanting in the uterus, use of such birth control methods deprives a fertilized egg, as person, of its lawful and constitutionally guaranteed right to life. Personhood USA considers the use of contraceptive pills and devices tantamount to abortion, and wants to make it a punishable offense for women to control their own fertility.
In other words, a woman commits murder by using the most common birth control methods. Doctors, too, commit murder by any procedure or medication that could deprive a fertilized egg from its right to life. Because the proposed legislation makes any effort to terminate any pregnancy a criminal act, it could bar doctors from saving the lives of women with ectopic pregnancies, which are never viable and need to be terminated as soon as possible.
According to 2008 numbers, around 11 million American women use birth control pills and another 2 million use intrauterine devices (IUDs). National surveys have found that nine in ten women in the U.S. use some form of birth control at some point during their life.
Personhood USA has been exceptionally successful at pushing forward "person-hood" legislation that redefines the beginning of life as the moment of conception in numerous state legislatures where tea party candidates won election in significant numbers last fall. Although the medical community has long been in agreement that fertilization does not mark the beginning of a pregnancy or life — fertilized eggs must first be implanted, and only about half of fertilized eggs actually result in a pregnancy — a growing number of lawmakers are supporting Personhood USA’s efforts to buck medical expertise and legally define life as the moment a sperm meets an egg.
If the state legislatures succeed in passing such a law — and if such laws survive judicial scrutiny — it could turn common forms of birth control into the legal equivalent of a homicide. While “personhood” laws have always been a transparent attempt to outlaw abortion, the legislation supported by groups like Personhood USA this year goes much further in trying to assert government control over women’s bodies. These laws would recognize every fertilized egg as an individual and complete human being with full rights, and place millions of women in legal jeopardy.
- CommonDreams.org: Almost Fifty Years After Griswold, We're Still Fighting for Access to Contraception.
- Think Progress: Anti-Abortion Groups Push To Outlaw Contraceptives By Redefining Personhood
Updated February 18, 2011 @ 11:58pmIn 1916, one woman's strength, determination and conviction helped open the door for hundreds of millions of women worldwide to plan their own pregnancies. As a nation, we have made great strides since Margaret Sanger opened that first family planning clinic in New York City nine decades ago, and Planned Parenthood is remains at the forefront of the fight for reproductive health and rights for all women. Planned Parenthood also provides information about the purchase and use contraceptive products. Providing information about birth control products actually saves the taxpayers money -- about $4 for every dollar invested.
One in five American women receives care from a Planned Parenthood health center at some point in her life, and 90 percent of this care is preventive -- lifesaving screenings for cancer, blood pressure screening, testing for HIV, and testing and treatment for other sexually transmitted infections.
The Republican war on women is renewed today with a vengeance as the U.S. House voted on H.R. 1, 240-185, to block all federal funding to Planned Parenthood, and to go one further, completely de-fund the nation's 40-year-old family planning Title X program. Read the full story @ DailyKos
Original post July 23, 2009
Many people today do not remember that the sales and use of contraceptive products, even by married couples, were against the law in many states until the mid-1960's. Even the distribution of books and pamphlets about contraceptive products and practices was illegal. The U.S. Supreme Court ruled such state laws unconstitutional in its 1965 Griswold v. Connecticut decision. The court based its Griswold decision partially on the grounds that such state laws violated a married couple's right to privacy in making their own private family planning decisions.
In opposing the legalization of contraception, conservatives declared in 1965, as they continue to declare today, that sex must be inextricably tied only to reproduction; That it is morally wrong for people, young or old, married or not, to pursue sexual pleasure while deliberately preventing pregnancy. Albert Mohler, current president of the Southern Baptist Theological Seminary, voices the social conservative position on contraceptives when he writes, "To engage in sexual pleasure without openness to children is to violate a sacred trust." This echoes Pope Paul VI's "Humanae Vitae" encyclical of 1968 that forbade "any action which either before, at the moment of or after sexual intercourse, is specifically intended to prevent procreation."
After the court legalized the sale and use of contraceptive products for married couples in its 1965 Griswold decision, and particularly after the court extended its Griswold right to privacy finding to legalize the sale and use of contraceptive products for unmarried couples in its 1972 Eisenstadt v. Baird decision, social conservatives have followed an agenda of limiting the availability of information about contraceptives and family planning options at every turn to everyone, young or old, married or not.
The underlying motivation for withholding accurate information and disseminating misinformation about the effectiveness of contraceptive products, as this blog is discussing in its five part series on sex education, is to discourage people from using contraceptives, period - even through their adult life.
Social conservatives successfully pressed this agenda into action through Abstinence-Only Sex Education funding legislation passed during the years that conservative Republicans controlled the White House, U.S. Congress and many state legislatures, like Texas.Social conservatives hold the Supreme Court's Griswold “right to privacy” declaration with contempt because it is the foundation of the court's 1973 Roe v. Wade decision. Citing the Griswold v. Connecticut and Eisenstadt v. Baird decisions, which were based on justifications of privacy, the Justice Burger Court extended the right of privacy to include a woman's right to have an abortion in its 1973 Roe v. Wade decision that found a Texas law criminalizing abortions unconstitutional.
NYTimes: For the past 33 years — since, as they see it, the wanton era of the 1960's culminated in the Supreme Court's Roe v. Wade decision in 1973 — American social conservatives have been on an unyielding campaign against abortion. But, as the conservative tide swelled, this campaign has taken on a broader scope. Its true beginning point may not be Roe but Griswold v. Connecticut, the 1965 case that had the effect of legalizing contraception. "We see a direct connection between the practice of contraception and the practice of abortion," says Judie Brown, president of the American Life League, an organization that has battled abortion for 27 years but that, like others, now has a larger mission. "The mind-set that invites a couple to use contraception is an anti-child mind-set," she told me. "So when a baby is conceived accidentally, the couple already have this negative attitude toward the child. Therefore seeking an abortion is a natural outcome. We oppose all forms of contraception."
The Griswold and Eisenstadt privacy decisions were again cited in the court's Lawrence v. Texas 2003 decision holding a Texas state law prohibiting certain forms of intimate sexual contact between members of the same sex as unconstitutional; yet another decision conservatives hold in contempt. Justice Thomas’ dissent in Lawrence v. Texas leaves little doubt that he would overrule Griswold if given the chance, and Chief Justice Roberts disparaged Griswold in an article he drafted in 1981, although he claimed to have backed away from that view in his confirmation hearing.
The Bush Administration in 2008 took the conservative abstinence-only agenda a step beyond sex education with an administrative approach to legally restrict access to contraceptive products. As reported in the Wall Street Journal, "The Bush Administration's Department of Health and Human Services wrote a regulation that defines most birth-control pills and intrauterine devices as abortion because they work by preventing fertilized eggs from implanting in the uterus." Most social conservatives define a fertilized egg, from the "moment of conception," as human person with full civil rights. Any human interruption to the natural processes that allows and egg to be fertilized or once fertilized to implant in the uterus and develop into a full term birth is akin to abortion. In December, the HHS formally adopted this conscientious objection 'regulation’ permitting federally funded health care providers to decline to provide or participate in services, such as filling prescriptions for contraceptives, to which they object.
In the context of the Judge Sotomayor Supreme Court confirmation hearings last week, Americans should be reminded of the GOP's on-the-record opposition to the constitutional principle that American have a right to privacy, a right that was "granted" in the 1960s by the Supreme Court's Griswold v. Connecticut decision.
The GOP is on the record as opposing the court's finding that the language of the constitution defines a principle that American citizens have a general right of privacy to be left alone without government intrusion into their personal or family decisions and lifestyle. Conservatives in the GOP continue to press their so called strict constructionist constitutional argument, that Americans have no right to privacy, because it is not explicitly enumerated (written) in the Constitution.
By arguing against the Supreme Courts right to privacy finding, conservatives are arguing against the court's so called "activist" decisions on a broad range of social rights that include child rearing, procreation, marriage, contraception, private and home schooling rights and civil rights equality.One of the most memorable moments from Judge Sonia Sotomayor's confirmation hearings before the Senate Judiciary Committee was the aggressive line of questioning from Sen. Lindsey Graham (R-S.C). The South Carolina Republican demanded to know if President Obama's nominee for the Supreme Court had a "temperament problem" and even told Sotomayor that she had a reputation as a bully. At another point, the senator asked Sotomayor about her now infamous "wise Latina" comment and her tenure on the board of the Puerto Rican Legal Defense Fund, a legal arm for the Hispanic community, with the inference she is a Latina racist. It was all reflective of the line of questioning that Republicans on the Judiciary Committee pushed all day.
Finally, Senator Graham turned to another line of questioning by asking Judge Sotomayor, "Would you be considered a “strict constructionist” in your own mind?
... I'm asking ... Does the Constitution, as written, prohibit a legislative body at state or federal level from defining life or relating the rights of the unborn? ... Is there anything in the [Constitutional] document written about [a woman's right to choose] abortion?" Judge Sotomayor finally answered, "The word "abortion" is not used in the Constitution, but the Constitution does have a broad provision concerning a liberty provision under the due process..." Cutting Judge Sotomayor off mid-answer Sen. Graham observed, "That's my concern. ...a lot of us feel that the best way to change society is to go to the ballot box, elect someone, and if they are not doing it right, get rid of them through the electoral process. And a lot of us are concerned ... that unelected judges are very quick to change society in a way that's disturbing."Senator Graham's "strict constructionist" line of questioning exemplifies the GOP's indefensible positions on American's right to privacy and civil right of equality regardless of race, sex or religion. Because the Supreme Court's 1973 Roe v. Wade decision is based on the courts constitutional "right of privacy" finding, conservatives like Senator Graham, always reference Roe to rally support to their "strict constructionist" constitutional argument that Americans have no right of privacy. The abortion issue is little more than a stalking horse that social conservatives use to attack the Supreme Court's so called liberal "activist" decisions on a broad range rights issues, including the right to purchase and use contraceptive products.
[The full exchange between Judge Sotomayor and Sen. Graham can be found in the transcript here.]
Conservatives argue that the framer's "original intent" can be found only in the exact words written in the constitution rather than an understanding and application of the principles that framers were attempting to define. Conservatives maintain that judges who make decisions based on "constitutional principles" carried in the words, rather than application of the exact words, written in the constitution are liberal activist judges who legislate from the bench.
Of course, the Constitution, as written, does not specifically prohibit a legislative body at the state or federal level from segregating schools as separate but equal "white only" and "black only" institutions, but the Supreme Court did find such laws unconstitutional in the court's 1954 Brown vs. Board of Education decision. In Brown the court found that the language of the constitution defines principles that segregation deprives segregated citizens of their equal protection under the "due process of law" as granted in the 14th Amendment.
Even the late Chief Justice William Rehnquist, who held "constructionist" views on constitutional interpretations, opposed Brown v. Board of Education as an unconstitutional decision when he was a Supreme Court clerk. Rehnquist also urged Barry Goldwater to argue that the 1964 Civil Rights Act was unconstitutional.Nor does the Constitution, as written, specifically prohibit a legislative body at the state or federal level from segregating drinking fountains as "white only" and "black only," from restricting marriage between people of different races, from making the use of birth control pills and condoms a criminal offense, from requiring parents to send their children to public rather than private schools or even from restricting access to the ballot box on election day through poll taxes, literacy tests and other "Jim Crow" related laws.
These and other such rights are not enumerated by specific wording in the U.S. Constitution, but they are rights that most Americans today believe are implicitly guaranteed by the Constitution. Even so, Americans were denied these rights by many state and federal laws, particularly among southern states like Texas, until the 1950's and 1960's.Conservatives like Senator Graham continue to maintain that it is wrong to appoint Supreme Court Judges, like Judge Sotomayer, who believe the constitution grants rights not specifically enumerated in word and who will not look for opportunities to turn the constitutional clock back to 1950; A time before Brown vs. Board of Education and Griswold v. Connecticut.
Conservatives would reverse Roe v. Wade by reversing the Supreme Court's 1965 Griswold v. Connecticut finding that the language of the constitution defines principles that American citizens have a general right of privacy to be left alone without government intrusion into their personal or family decisions and lifestyle. By reversing Griswold conservatives would in one stroke set the stage to reverse every Supreme Court "right of privacy" decision made in the past 60 years.
This is the motivation behind the questions that Republicans on the Judiciary Committee pressed on Judge Sotomayor and the reason they are opposed to placing anyone on the Supreme Court that is not a "strict constructionist" conservative.
One time Supreme Court nominee and conservative strict constructionist Robert Bork examined the landmark case Griswold v. Connecticut in his book, "The Right of Privacy" and proclaimed that Justice Douglas erroneously interpreted that the Constitution grants Americans a right of privacy because it was never actually written into the Constitution.
Supreme Court Justices Thomas and Scalia have explicitly argued that the right to privacy is, in fact, not a constitutional right.
- Justice Thomas: there is "no general right of privacy" or relevant liberty in the Constitution (Lawrence v. Texas dissent)
- Justice Scalia: has often spoken disparagingly of the "so-called 'right to privacy'"(Lawrence v. Texas dissent)
Yet very few conservatives or GOP leaders in their right mind would openly dare argue that there is no right to privacy in the United States because they know it is a losing proposition. Better to leave all but their conservative base in the dark than reveal such uncomfortable and fundamental tenets of their political religions. Conservative politicians use code phrases like "activist judges" and "strict constructionist" to send messages to their faithful conservative base that they would, if they could, revoke the right of privacy, revoke the right to purchase and use contraception, revoke the right of women to make choices about their own health and body and, perhaps, even revoke the finding that segregation is unconstitutional.
Transcripts of the Senate Judiciary Committee's Confirmation Hearing for Judge Sotomayor:
- Each committee senator's opening statement.
- Sotomayor's opening statement.
- Part-1 of Tuesday's transcript, Part-2, Part-3, Part-4 and Part 5.
- Part-1 of Wednesday's transcript, Part-2, Part-3 and Part-4.
- Part-1 of Thursday's transcript, Part-2, Part-3, Part-4, Part-5, Part-6 and Part-7.