To ban contraception to married couples too?

In the New Yorker comes this note lost in the shuffle of the NH primary. I sense a pervasive theme of bigger government interference:

Since Ronald Reagan, Republican Presidents (and Presidential nominees) have been committed to overturning Roe v. Wade, the Supreme Court’s abortion-rights landmark from 1973. But as the debates last weekend in New Hampshire suggested, the G.O.P. appears to have taken a more extreme step in terms of rolling back the Constitutional right to privacy.

Since the first time Mitt Romney ran for President, four years ago, he’s been on record reversing his previous support for abortion rights. However, when pressed by George Stephanopoulos in the debate Saturday night, Romney went beyond mere opposition to Roe. He said he thought Griswold v. Connecticut, the 1965 case that first made explicit the right to privacy, was also wrong. “I don’t believe they decided that correctly,” Romney said. In this, the front-runner was eagerly seconded by Rick Santorum, who said the Justices “created through a penumbra of rights a new right to privacy that was not in the Constitution.”

In Griswold, the Court ruled that a Connecticut law banning the sale of contraceptives, even to married couples, was unconstitutional. In the most famous passage from that opinion (which Santorum alluded to) Justice William O. Douglas said, “Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.” Later, Douglas said, “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system.”

Roe has long been controversial, of course. But Griswold, largely, has not. For example, while John Roberts and Samuel Alito were cagey in their references to Roe in their confirmation testimony before the Senate Judiciary Committee, both of them readily embraced Griswold as a settled precedent of the Court. This is understandable. It is chilling to believe that the Constitution could allow a state to ban married couples from buying birth control. (A few years after Griswold, in a 1972 case called Eisenstadt v. Baird, the Court said states could not ban unmarried people from buying birth control, either.)

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