Contraception & the GOP Debate

Statement of CFJ Executive Director Curt Levey:

During tonight’s GOP debate, moderator George Stephanopoulos asked Mitt Romney “Do you believe states have the right to ban contraception, or is that trumped by a constitutional right to privacy?” Knowing that Romney and most Americans would not support a government ban on contraceptives, Stephanopoulos’ apparent goal was to trip up Romney, who believes that Roe v. Wade – in which the Supreme Court relied on a supposed constitutional right to privacy – was wrongly decided.

For non-lawyers, a general constitutional right to privacy was created by the Court in its 1965 Griswold v. Connecticut decision, which struck down an unenforced state law prohibiting contraception.

In addition to Romney, Rick Santorum and Ron Paul were drawn into the debate over Stephanopoulos’ question. Answering this question is perilous only if one skips over the distinction between the legal issue – was Griswold rightly decided as a matter of constitutional interpretation – and the political question – should states be prohibited from banning contraception as a matter of federal policy, presumably expressed through a federal statute or constitutional amendment.

Perhaps Stephanopoulos was trying to blur this distinction. Or perhaps – like most of the “living Constitution” crowd – he does not fully comprehend the distinction. In any case, we wish the GOP contenders had taken the opportunity to make the distinction clear, because it’s at the heart of the debate over judicial activism.

Opponents of judicial activism believe that judges’ policy views – say, on the desirability of a general right to privacy – should play no role in constitutional interpretation – for example, in determining whether the Constitution’s "penumbras" and "emanations" imply a right to privacy, as Griswold concluded. Believers in a “living Constitution,” on the other hand, advocate that judges should update the meaning of the Constitution to incorporate the evolving values of society (at least those of elite society).