Last week marked the 40th anniversary of Griswold et al. v. Connecticut, in which the Supreme Court overturned a Connecticut Supreme Court decision, thus ruling unconstitutional a Connecticut law that prohibited the use of “any drug, medicinal article or instrument for the purpose of preventing conception.” [IMGCAP(1)]
Griswold re-emerged in the public eye 22 years later, during the confirmation hearings of Robert Bork for the Supreme Court. The court had struck down the law on the grounds that it violated the right of marital privacy that is “within the penumbra of specific guarantees of the Bill of Rights.” Bork had written critically of the decision because of the court’s reasoning, but he was hammered because of the substantive result instead.
By 1987, of course, the whole idea of a law banning contraception — whether to married or non-married people — seemed almost a vestige of the Middle Ages. Nowadays, contraception in all forms has been not just legalized, but commercialized to a remarkable extent — up to and including network television advertising at all hours for birth control pills and condoms.
Well, now it’s déjà vu all over again. Birth control is back as an issue. It is already being discussed and debated in legislatures and the public square. It will be there on the campaign trail. It will shape policy debate in a sharper way than we have seen in decades, on issues ranging from abortion to AIDS, and is sure to become one of the clearest battlegrounds on the role of religion in politics. But it may play out differently than such issues have in the recent past — especially since Americans accept, by breathtaking margins, the idea that contraception is appropriate. And they use it regularly.
Democrats have been on the defensive on abortion for some time, with a policy agenda that has emphasized issues like partial-birth abortion and parental consent. But imagine if the agenda shifts. If a party appears to be opposed to birth control — in ways that may increase unwanted pregnancies (and perhaps abortions), not to mention countless deaths around the world from AIDS — it could suffer considerably on issues where it has previously had traction.
Birth control has been brought to the fore by a series of recent events and actions:
• The advent of the morning-after pill has stirred controversy at the Food and Drug Administration, which has delayed action on allowing sales of the pill over the counter and without prescription. The problem is serious enough to have provoked two Democratic Senators to put a hold on the nomination of Lester Crawford as head of the FDA. It has also triggered an inspector general investigation over the FDA’s decision-making process and thus raised sharply the public profile of the issue.
• Pharmacists in several states have refused to honor prescriptions for the morning-after pill, in some cases refusing to hand the prescriptions back to women so they can go to another pharmacy. In some cases, pharmacists are also refusing to honor prescriptions for regular birth control pills, based on their religious convictions. Governors in Illinois and elsewhere are moving to force pharmacists to comply with state laws, to enact laws to require pharmacists to fill prescriptions, or to overturn laws that allow pharmacists to deny legal prescriptions on religious grounds.
• The death of Pope John Paul II and the elevation of Cardinal Joseph Ratzinger as Pope Benedict XVI has highlighted their opposition to any form of birth control, save natural rhythm. In fact, the new pope appears to be even more rigid on the issue than his predecessor and more likely to press it around the world, including in areas such as Africa and Asia where promoting the use of condoms to combat AIDS is already controversial.
• Opposition by the Bush administration to give American aid to multilateral institutions that support family planning purposes — including not just bars on advice about abortion but also on the use of contraception.
• Bills have been introduced in Virginia to define life as beginning at fertilization, which would make illegal both interuterine devices and some birth control pills.
• The heralded recent speech on abortion by Sen. Hillary Rodham Clinton (D-N.Y.) focused on the desirability of making abortion “safe, legal and rare” by acting aggressively to prevent unwanted pregnancies through a combination of sex education, availability of contraception and advocacy of abstinence. Sen. Clinton noted that this approach helped abortions decline during the Clinton administration, adding that they have risen again in the Bush administration, which abandoned the first two approaches in order to focus single-mindedly on abstinence.
The abortion numbers cited by Sen. Clinton are now in dispute, but the possibility that she has a point — that opposition to birth control can actually mean more abortions — is compelling. Clinton’s speech reiterated points she had made before, but it served to conflate opposition to birth control and abortion. And that message is not fanciful or contrived: The active involvement of Catholic clergy in the last presidential election, up to and including recommendations from pulpits for vote choices based on abortion, cannot be easily separated from the church’s equally staunch opposition to birth control. And the bills in Virginia clearly link the two issues.
By overwhelming margins, Americans of all political stripes approve of birth control. A full 94 percent in a 2003 Washington Post/ABC survey said they find birth control — using the pill or condoms — morally acceptable. Seventy-eight percent of Catholics in a new Gallup survey say they believe the church should allow Catholics to use birth control.
But the clear views of the public on this issue will not keep it from emerging as a divisive political issue. Nor will public opinion necessarily faze an administration eager to burnish its religious and anti-abortion credentials, a pope focused on challenging moral weakness, pharmacists intent on fulfilling their own religious beliefs and punishing those who don’t share them, or legislators willing to offer bills that push the envelope on defining life. The time machine is heading back to the ’60s, but with a divisive political and theological twist that will make it much less pleasant, with the potential to redefine the political landscape on a host of key moral issues.
Norman Ornstein is a resident scholar at the American Enterprise Institute.