Women's rights, SCOTUS, and birth control

by Plutonium Page

We're all very concerned, and rightly so, that Bush's SCOTUS choice will be rabidly anti-abortion, and hence will be in favor of overturning Roe v. Wade.

But what about birth control?

Well, I'll get right to the point.

What do you know about the Griswold v. Conneticutt decision? The SCOTUS ruled on it in 1965, and I am ashamed to say that I didn't know anything until I read this:

The Griswold v. Connecticut decision protects the right of married women to practice contraception and to secure access to legal and reliable reproductive-health services. It later provided the foundation for expanding privacy protections to encompass abortion. And those are two of the critical protections now endangered by the potential change of just one justice in the U.S. Supreme Court.

The story of Griswold begins in 1961, when Estelle, then executive director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton of Yale University’s Medical School opened a small birth-control clinic in downtown New Haven, Conn. They intended to challenge the validity of the state’s official ban on birth control, and indeed, nine days later, they were arrested for dispensing contraceptives to a married couple. A month later they were convicted and fined $100 each.

Arrested for dispensing birth control - amazing. It's hard to imagine.

And it turns out that access to birth control is all about privacy:

When their case finally reached the Supreme Court, seven of nine justices agreed that a zone of privacy safeguarding birth control inheres in what Justice William O. Douglas called a “penumbra” (a shaded rim between darkness and light) of the Constitution and the Bill of Rights. (Other justices felt it was covered by protections against search and seizure and other specific rights that could logically be extended to cover marriage.)

In other words, although the Constitution and the Bill of Rights do not explicitly guarantee privacy rights to individuals, such rights are implicit within the documents. The landmark ruling in Griswold v. Connecticut paved the way for Eisenstadt v. Baird, the 1972 Supreme Court decision that extended these same privacy protections — and thus the right to obtain birth control — to unmarried women. It opened the door the following year to the historic ruling in Roe v. Wade, which expanded the privacy doctrine to abortion, granting women and their doctors the legal right not just to prevent, but also to terminate, unwanted early pregnancies.

So now you're wondering "what the hell does Bush's upcoming decision have to do with this? Why should I care?" Well, I'm not a lawyer, so I had to have it spelled out for me too:

Safe and reliable contraception offers women fundamental control over their bodies and their lives. Roe v. Wade, adopted by a comfortable 7-2 majority of the Court, extended privacy protections to early terminations of unwanted pregnancy. In 1992, however, in deciding the Pennsylvania case Planned Parenthood v. Casey, the Court only narrowly (5-4) upheld the core privacy doctrine of Roe — and at the same time introduced a new standard that has allowed many states to place greater restrictions on abortion, even in the first trimester.

[snip]

Considering the close call in Casey, the appointment of just one new conservative justice to the Court could threaten all constitutional protections for abortion — and perhaps for contraception, as well — thereby reversing history and sending the responsibility for regulating these practices back to politicians in state legislatures.

The first thing that came to my mind was that it would be very difficult to restrict access to contraception, but that's already happened; there's the fight over making the "morning after pill" available over the counter. There have also been cases where pharmacists have refused to fill prescriptions for the birth control pill.

It's pretty clear what's at stake.

Comments

[DemFromCT]

Different world, then, huh? Even in CT.

[Plutonium Page]

Different world, then, huh?

No kidding. It's inconceivable that some pharmacists are refusing to fill prescriptions for the Pill; it's unimaginable that women were arrested for dispensing birth control.

[Meteor Blades]

Yes, I completely agree. But, as you will find if when you cross-post this at Daily Kos, there are quite a few folks over there - Armando being one - who don't think Griswold will be in play.

I heard this same view quite a bit when the heavy-duty abortion Diaries were being posted several months ago. Roe is at risk, it was said, but we don't have to worry about Griswold, Eisenstadt because the 'Merkun people just wouldn't stand for losing access to contraception.

To which I reply, how many SCOTUS votes do you think you could get today if Griswold were coming up for the first time. Thomas? Scalia? Rehnquist? Doubtful. So, at best, we've got a 6-3 majority on the subject now. If Bush gets to replace O'Connor, Rehnquist and Bader-Ginsburg, it could be 5-4 against us in this matter.

[Plutonium Page]

MB - thanks for confirming what my very limited reading has lead me to believe as well. I've held back from posting anything on the SCOTUS issue because I don't know shit about anything legal, but I've heard the Griswold argument before, and I figured I might as well go for it.

[Mimikatz]

IIRC, Mrs. Griswold was the wife of later Solicitor Irwin Griswold. Was that in your story? I confess I skimmed it.

The right to contraception is really the key right. As a 62 year old woman, I can tell you that that is what liberated my generation, far more than Roe v. Wade. Getting Planned Partenthood into the open in every state.

This is also the quintessential wedge, because it separates those who are serious about reducing unintended pregnancy, and all the problems that follow from it, from those who want to punish women for "stepping out of line" and having sex on their own terms.

There has been much that wnet5 awry with the sexual revolution, but the far, far right is correct that Griswold is what allowed it to happen.

[NG]

Planned Parenthood v. Casey, the Court only narrowly (5-4) upheld the core privacy doctrine of Roe — and at the same time introduced a new standard that has allowed many states to place greater restrictions on abortion, even in the first trimester.

This may be obvious to most here, but do you know who the Casey was in this Supreme Court ruling. It was none other than Young Bob Casey's father when he was an anti-choice Dem? Governor of PA! Young Casey is the highly publicised Dem condenter to beat Santorum, but on this issue, there may not be much of a difference. For that matter, throw in Harry Reid's Democractic view of the issue, and I think women concerned about such issues should begin to think about forming their own political party, as the current (and future with Casey) Dems will not likely be much help, IMO!

[Steve]

As I said to Armando, I think Meyer v. Nebraska would be jeopardized before Griswold, given the current state of the country. Now there's one for you to look up.

[~DS~]

Excllent post Page. This is something I hope to see the dems pounding when over the next couple of election cycles.

[Meteor Blades]

Oddly enough, I actually knew what Meyer was when you posted that comment at Daily Kos.

The reason: my stepfather was born in Nebraska in 1923, coincidentally just four days after that decision. His family is ultra-conservative German Lutheran, and they would still make references to this decision 40 years later when I hooked up with them. Their view: it was the last time the High Court made a good ruling.

[kainah]

I doubt that Griswold is in any danger of being overturned but I also think it should be the issue. "Abortion" has been turned into a poison word. Most people wish they would never hear anything more about it. So, whenever "abortion" enters the debate, the left loses.

We have to start talking about the right to privacy rather than right to choose. And, in my mind, we should stop talking about Roe and start talking about Griswold. Because, while the decision may not be in imminent jeopardy, surely many of the principles that stem from it are.

No one wants their privacy invaded. We saw that with Terri Schiavo. So to stress the need to preserve the right to privacy, we would play on negative frames already accepted by the American people.

I know so many people who tune out the abortion/Roe debate because they feel that it is intrusive on the women who have to make such a difficult decision.

So let's talk abt privacy. When they say Roe, we say Griswold. When they say pro-life, we say privacy.

And, I know that there are people who feel passionately about this issue and I might have offended someone with something here. For that I apologize. I very much support abortion rights, as I did in 1973 when I had mine.

[Mike S]

Interesting poll from cbs. The first two questions are a little screwy compared to the third. The third says that Roe was a good thing by 59/32, with reps split at 47/47.

http://www.pollingreport.com/abortion.htm

[Steve]

The problem with bringing up Griswold is the credibility gap. We weren't even able to convince people in 2004 that Roe was on the line. It's unclear whether we will even be able to convince them of that in the SC debate, unless the nominee is someone openly anti-Roe. So when we bring up Griswold, and the Right pooh-poohs it as a silly straw man, I'm just not confident people will see it our way.

[Meteor Blades]

Well, I agree with you, Steve. Because those of us who believe Griswold damned sure is at risk can't even convince you we're right.

So if Kainah is right, that the left always loses when "abortion" is said aloud (despite the polls), and you're right, that using the privacy issue based on Griswold is hopeless because Americans won't buy it, what should be our strategy?

I, for one, would like my Democratic Senators to ask the question directly of the nominee: Tell us in detail what you think of Griswold? Litmus test? Absolutely.

[Kagro X]

Those who have doubts about whether or not Griswold would come under direct assault come from a place we'd all like to think makes good sense. But having received by legal education from the neo-con sympathizing, law & economics-trained, Federalist Society professors, I can tell you that when the case is discussed at the George Mason University School of Law, the "poison word" isn't "abortion." It's "penumbra."

[Steve]

It's not about the legal reasoning involved. What state is wingnutty enough to criminalize birth control in the year 2005? You don't get to the Supreme Court until there is a case.

[Kagro X]

I wouldn't go out on a limb and name a state, but I wouldn't take a bet that no state will produce a case that challenges Griswold, either. The reason the "penumbra" language raises hackles is that goes to privacy in general, not just birth control.