Daily Kos

Stop saying "Roe"! Start saying "Griswold".

Sun Jun 08, 2008 at 07:59:44 AM PDT

I'm not sure why this issue has been neglected in the pro-choice debate.

Roe v. Wade is only one case in a line of cases based on a Constitutional right of privacy.

If Roe is overturned on the basis that there is no Constitutional right of privacy, then all the cases decided on that right will fall.

This includes Griswold v. Connecticut.  Prior to the Supreme Court's ruling on Griswold, the State of Connecticut made it illegal for anyone - including married couples - to use birth control.

Do Americans realize that if Roe is overturned, and there is no Constitutional right of privacy, states will be able to make birth control illegal again?  Even for married couples?  

Our new message must be:  When McCain says "Roe" - he means "Griswold" too.  John McCain wants to make birth control illegal.  

From Washington Monthly, on the link between Roe and Griswold:

It seems to me though, that the focus on Roe is misguided in any case. If my understanding of Roe is correct, it's based on a generalized right of privacy as decided in Griswold v. Connecticut, which in turn was based on our current understanding of the doctrine of substantive due process. I suspect you can't overturn Roe without also substantially overturning Griswold and significantly weakening the modern application of substantive due process at the same time. Rosen mentions this, and it seems like it's really the key issue: not whether Roe is a superprecedent, but whether Griswold's interpretation of substantive due process is a superprecedent.

... However, if overturning Roe required overturning Griswold, as many conservatives think it does, it would not only return us to the grisly days of back-alley abortions in red states that decided to make abortion completely illegal, but it would also have a devastating impact on an enormous variety of rights and precedents that go far beyond abortion.

More on Griswold from Wikipedia:

Griswold v. Connecticut, 381 U.S. 479 (1965), [1] was a landmark case in which the Supreme Court of the United States ruled that the Constitution protected a right to privacy. The case involved a Connecticut law that prohibited the use of contraceptives. [The law prohibited the use of "any drug, medicinal article or instrument for the purpose of preventing conception."] By a vote of 7-2, the Supreme Court invalidated the law on the grounds that it violated the "right to marital privacy".

Although the Bill of Rights does not explicitly mention "privacy", Justice William O. Douglas (writing for the majority) ruled that the right was to be found in the "penumbras" and "emanations" of other constitutional protections. Justice Arthur Goldberg wrote a concurring opinion in which he used the Ninth Amendment to defend the Supreme Court's ruling. Justice John Marshall Harlan II wrote a concurring opinion in which he argued that privacy is protected by the due process clause of the Fourteenth Amendment. Justice Byron White also wrote a concurrence based on the due process clause.

Two Justices, Hugo Black and Potter Stewart, filed dissents. Justice Black argued that the right to privacy is to be found nowhere in the Constitution. Furthermore, he criticized the interpretations of the Ninth and Fourteenth Amendments to which his fellow Justices adhered. Justice Stewart famously called the Connecticut statute "an uncommonly silly law", but argued that it was nevertheless constitutional.

Since Griswold, the Supreme Court has cited the right to privacy in several rulings protecting access to sexual healthcare, most notably in Roe v. Wade, 410 U.S. 113 (1973). The Supreme Court ruled that a woman's choice to have an abortion was protected as a private decision between her and her doctor. For the most part, the Court has made these later rulings on the basis of Justice Harlan's substantive due process rationale.

From johnmccain.com:

Human Dignity and the Sanctity of Life

Overturning Roe v. Wade

John McCain believes Roe v. Wade is a flawed decision that must be overturned, and as president he will nominate judges who understand that courts should not be in the business of legislating from the bench.

Constitutional balance would be restored by the reversal of Roe v. Wade, returning the abortion question to the individual states. The difficult issue of abortion should not be decided by judicial fiat.

If the states have the power to decide whether or not abortion is legal, they would also have the power to decide if the use of birth control is legal.  

We already know that a vocal group of misogynistic zealots are actively trying to restrict women's access to contraception, even if legally prescribed by their doctors.  They infiltrated the FDA to stall and try to defeat the approval of Plan B.  If they are given an opening to restrict women's rights more fully, they will most certainly exploit it to the maximum extent.  They will push the states to pass laws making all kinds of contraception illegal - not just Plan B.  Do we want to be fighting state by state, legislature by legislature, governor's office by governor's office, to keep contraception legal?

Without the right of privacy to protect us from these intrusive actions of government, we would not be free to determine for ourselves one of the most fundamental aspects of our being - whether or not to reproduce.  

Justice Sandra Day O'Connor's decision in Casey articulated the most expansive notion of liberty to date, reaffirming that the Due Process Clause protects personal decisions regarding family relationships: "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Moreover, she wrote, "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter."  link

Need I point out that voting for John McCain because you refuse to accept that Hillary lost is a very, very big mistake?  

From now on - don't say Roe.  Say Griswold.   John McCain wants to overturn Griswold v. Connecticut.  

How can Griswold stand if Roe falls?  THIS IS IMPORTANT - This is the question McCain needs to be asked.  Let him give a sputtering, confused answer to that question.   That is the viral youtube video I want to see.

Tags: John McCain, Roe v. Wade, Griswold v. Connecticut, contraception, privacy, 2008 elections (all tags) :: Previous Tag Versions

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