Griswold vs. Obama

Earlier this year George Stephanopoulos took advantage of his status as a debate "moderator" to ask Governor Romney "do you believe that states have the right to ban contraception? Or is that trumped by a constitutional right to privacy?" If you go back and read the transcript, the exchange at this point gets garbled. Weirdly foreshadowing the current debate over forcing religious institutions to pay for contraception, here's how it reads:

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.


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.  (Emphasis added.)

I think it's clear that what the Governor meant to ask was: has the Supreme Court decided that states do not have the right to ban contraception? That is certainly what Mr. Stephanopoulos meant to affirm and that was more or less what Griswold held.

The state doesn't belong in the bedroom

Griswold is taught in every Con. Law course in every law school in the country. It holds that there is, implicit in the Constitution (and this implicit-ness is part of what is controversial about Griswold), a personal right to privacy. And when a citizen is in his or her zone of privacy, e.g., when a married couple are having sex in their own bedroom, the state can't tell them what to do. So there is, according to the "Supreme Court" (the Warren Court to be specific), a Constitutional "right" to use contraceptives (and to buy them), which a state may not abridge.

It now turns out that -- in the view of the Obama Administration (and in the view of Mr. Stephanopoulos?) -- Griswold did not, as some like to think, kick the state out of the bedroom. Because, in fact, the state does have the right to, as Governor Romney put it, "provide" contraception. Not only do individuals have the right to use contraceptives -- they have the "right" to make someone else pay for them. (The rhetoric here is always, and shrilly, about "women's" "rights.")

Wait a second

Something about all of this doesn't compute. Could the state (or the Obama Administration) "provide" "free" abortions? Theoretically, yes (or at least, they certainly think they have this right). But they would not be so foolish as to propose doing so -- it crosses some kind of line of decency. So, the state can't ban contraception, but it can pick and choose which drugs/procedures (the pill, RU485, but not abortion) it will provide "for free" -- i.e., force strangers to pay for.

Isn't that micro-managing what goes on in the bedroom? Just what did Griswold stand for? That there is a right to be left alone when you go to bed? Or that the state has the right to manage (through subsidies and regulations) what goes on there so that it conforms to its view of social norms.

The new normal vs. the old normal

That second approach -- that there is a "normal" range of sexuality and the government is going to foster it -- goes some way to explaining why gays are so hot to get married (while straights are all getting divorced). If you take this view -- that the state is in charge of the bedroom -- the battle over what is "normal" is the battle. And everyone has to agree that contraception and abortion and gay "marriage" are normal. Or else. Anybody who doesn't toe this line will lose their gig, have to apologize all over TV, get picketed by losers, even be sued and, in some western countries, be put in jail.

If you take the first approach -- that none of this is any of the government's business -- then what is normal and what's not doesn't matter. All you thought police and speech police and sex police -- yell and scream all you want. Just don't try to use the power of the state to enforce your norms.

Actually, and rationally, the "right" answer lies somewhere in the middle, between those two views. There are, in fact, even under Griswold, certain things the government can regulate in the bedroom. You can't kill someone and claim as an excuse that it was a sex act. But the zone of what's "not the government's business" ought to be pretty wide. And ought to include contraception.

So, no -- contraception (reproductive health? whatever  BS word they are using now) shouldn't be free. Because, grow up. Nothing is free. What you mean by "free" is someone else -- some stranger -- should have to pay for it. And, in America, strangers shouldn't have to subsidize what you do in the bedroom. Any more than they have a right to tell you what to do when you get there.

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