Political Animal


January 08, 2012 9:25 AM It’s about privacy, not contraception

By Steve Benen

One of the more noteworthy exchanges in last night’s debate came about mid-way through the event, when ABC’s George Stephanopoulos asked Mitt Romney about, of all things, contraception. The question was a bit of a mess, and the back and forth seemed to annoy just about everyone, but the exchange wasn’t completely inane.

Stephanopoulos asked, “Gov. Romney, do you believe that states have the right to ban contraception? Or is that trumped by a constitutional right to privacy?” Romney feigned ignorance about the entire subject. “George, this is an unusual topic that you’re raising,” he replied. “States have a right to ban contraception? I can’t imagine a state banning contraception.”

This led to an awkward Q&A that eventually drew howls from the audience.

STEPHANOPOULOS: [D]o you believe that states have that right or not?

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?

STEPHANOPOULOS: Yes, they have. In 1965, Griswold v. Connecticut.

This went on for a while, before Romney eventually said he wants the Supreme Court to “overturn Roe vs. Wade.”

For most folks watching, I imagine this seemed utterly meaningless. But that’s only because Stephanopoulos raised the issue in such a clumsy and unhelpful way.

In 1965, the Supreme Court ruled in Griswold v. Connecticut that a state cannot deny couples access to birth control. The 7-2 ruling immediately became controversial because of its rationale — the justices based the ruling on a “right to privacy” that is not explicitly in the Constitution and had not been embraced by the court beforehand.

Eight years later, the Supreme Court used the Griswold ruling as a stepping stone for Roe v. Wade — Americans’ right to privacy extends to include the ability to terminate unwanted pregnancies. The Roe ruling in 1973 used Griswold as a foundation. As everyone involved in the debate knows, one ruling led to the other.

Romney surely understands this. He graduated from Harvard Law School in 1975. But Romney was probably playing dumb last night because he knew the question Stephanopoulos was getting at, but didn’t ask: was the high court wrong on Griswold? Or more to the point, does the Constitution include a right to privacy or not?

Because Stephanopoulos flubbed the discussion, we don’t really know the answer to those questions, though Romney’s desire to see Roe overturned is noteworthy in and of itself (most Americans take the opposite view).

Here’s a better way to word the question, for media professionals who may want to follow up: “Governor, in a case regarding access to contraception, the Supreme Court ruled in 1965 that Americans have a right to privacy. Were the justices right or wrong?”

Steve Benen is a contributing writer to the Washington Monthly, joining the publication in August, 2008 as chief blogger for the Washington Monthly blog, Political Animal.


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  • Mark-NC on January 08, 2012 9:33 AM:

    There you go again assuming "media professionals" can or bother to read.

    If that were true, there would be less stupidity, less outright lying, and more reasonable discourse in this country.

    I'm not holding my breath waiting for that to happen!

  • c u n d gulag on January 08, 2012 9:44 AM:

    “George, this is an unusual topic that you’re raising,” "

    I'm running for office, for goodness' sake."

    He should have asked Santorum.
    I'm sure Icky Sticky Rickey would have said that you can have sex in private, as long as your flogging and stoning are in public.

  • Diane Rodriguez on January 08, 2012 9:49 AM:

    I fear that privacy rights are understood by most consituents and media interviewers as having a door on the bathroom stall.

  • Jose Padilla on January 08, 2012 10:01 AM:

    Just because Romney went to law school doesn't mean he remembers the Griswold case. If you polled the one hundred members of the Senate, I doubt if a quarter could tell you the holding in Griswold or the facts of the case.

  • kevo on January 08, 2012 10:07 AM:

    Hey Republican candidates and debate moderators:

    Where are the jobs?

    Planning to make thousands of jobs patrolling the sexual practices of American adults? More jobs can be created from anti-abortion policies? What about the multitude of jobs that can be created if we choose in a Republicanesque way to hire anti-gay monitors?

    Now, maybe that is a whole new job sector these crafty Republicans have been working to create! Smart as a bag full of hammers, those guys!-Kevo

  • jpeckjr on January 08, 2012 10:08 AM:

    There's no explicit right to marry either. Nor is there an explicit right to have a job, or a place to live, or food to eat. Or to get an education, or health care.

    For that matter, a la Santorum, a child has no Constitutional right to have two parents of the opposite gender.

    Funny what the Constitution leaves out.

  • james on January 08, 2012 10:13 AM:

    Contraception and abortion both have to do with the control women have over their lives and bodies.

    Why don't these guys just admit it: the Founders never intended for women to be considered as fully human individuals separate from their husbands -- original intent, you know? Damn that 19th amendment! But for it, I wouldn't have to pretend to want women to vote for me.

  • JR on January 08, 2012 10:14 AM:

    More telling was Romney's claimed ignorance of states seeking to ban contraception... Mississippi's personhood amendment would have banned most forms of contraception. It failed there but will be on the ballot in several states.

    When interviewed by Mike Huckabee on Fox, during the run up to Prop. 23, Romney said that he "absolutely" supported the personhood amendment.

  • skeptonomist on January 08, 2012 10:14 AM:

    Griswold may be important in itself if Santorum is the Republican nominee, but otherwise its importance in in providing the justification for the Court's intervention in Roe v. Wade. Romney obviously has no intention to try to ban contraception, so why go after him (instead of Santorum) on Griswold? If you want to discuss abortion, start with Roe v. Wade, then you can maybe get into Griswold.

    If Romney had really known what Griswold established, he would probably have just said that it prohibited states outlawing contraception - this might actually be a point in his favor against Santorum.

  • SYSPROG on January 08, 2012 10:19 AM:

    This is so NOT a problem for any of these candidates in these 'debates'. You ask a question, they answer what they want to, the MSM 'presses' them and they answer what they want to.

  • Jose Padilla on January 08, 2012 10:29 AM:

    The importance of Griswold is that if you accept the court's reasoning in Griswold, it's difficult to logically oppose Roe v. Wade.

  • theAmericanist on January 08, 2012 10:31 AM:

    Skept is wrong. Roe depends on Griswold. So asking about Griswold covers Roe. SCOTUS can't overturn Roe without undermining Griswold any more than you can take a door off its hinges without leaving the house open. Decades of pointless debate prove it doesn't help to ask about Roe.

    But the whole exchange is an example of how not to ask questions. Oddly, Stephanopolous worked in the House, but he's caught the Senator's disease of needing to show off knowledge in the question, rather than requiring it in the answer.

    "Mitt, do you believe in the Constitutional right to privacy that the Supreme Court has found, or not? "

    And the obvious follow up: "Where would you draw the line -- between contraception and abortion? Between abortion and gay rights?"

  • T2 on January 08, 2012 10:31 AM:

    Law scoop or not, you give Romney too much credit in assuming he knew anything about Griswold, other than characters in a Vacation movie. I don't think Mitt is very smart.

  • Kiweagle on January 08, 2012 10:34 AM:

    What I found more stunning was the fact that no-one, including Benen, bothered to mention Mississippi's personhood amendment that voters turned down last November that would have banned the birth control pill.

    Griswold was decided in 1965, but this insanity is still happening today and will very likely be on the ballot in one or more states in November of THIS year.

  • berttheclock on January 08, 2012 10:39 AM:

    @Jose Padilla,

    Good point about members of the Senate not knowing the details. Reminds me of the time, the Senate decided to conduct the Iran-Gate investigation by bringing in North. Several of the Senators proudly boasted about being lawyers, although none of them had practiced law in years and few had ever been trial lawyers. So, they blew off putting North under oath without immunity for a deposition before he testified. They, foolishly, gave him immunity, which came back to haunt them. Then, they preened before the cameras and failed to have a practicing trial lawyer conduct cross. As North was well represented by a top TL, they were left to be seen as the fools they were. They should have brought in the best practicing trial lawyers they could find and, they, themselves should have sat back as "potted plants".

  • biggerbox on January 08, 2012 11:11 AM:

    Do they put stupid pills in the coffee in the green room or what? What kind of question was that?

    How is it that viewers came away not only not knowing where Romney stood, but also that Santorum has recently made statements opposing contraception?

    As for Romney's answer, that should disqualify him from office by itself. I realize that Republicans don't expect their candidates to know anything, but some of us expect our President to come into office with at least an average familiarity with the major political issues of the country.

    In my book, I'd rather hear a well-informed position I disagreed with than see someone pretend they don't know anything about the subject, and that it's silly to talk about, because that's just a lie that insults the whole idea of political debate.

    Romney just gets worse and worse.

  • theAmericanist on January 08, 2012 11:18 AM:

    I'm telling ya, it's a disease afflicting the right side of the Capitol as you face the Washington Monument.

    Watch a Senator ask a question in a hearing. Count the words. See if there is ever an obvious place for the question mark, much less for a "yes" or "no" reply.

    At the higher levels, there's an art to it, but what's missing is the working craft of asking the right question in the right way, anticipating more questions that lead somewhere from every answer.

    I was working in the Senate when Iran-Contra happened, so I remember it vividly. The questions SHOULD have gone along these lines, requiring short, single word or short phrase answers available:

    1) Colonel North, you are a lieutenant colonel, correct? Not a full colonel? That means you have a lesser rank than a full colonel? And that is less than a general? Even the lowest ranking general outranks you? The Marine Corps has -- how many? -- full colonels who outrank you? So your place in the chain of command is well below the top, isn't that correct?

    2) Working in the White House, you are not part of the Marine Corps chain of command, are you? That is, you don't perform your White House duties under the direction of the Marine Corps chain of command, but as anyone in the US military, under the civilian authority established by the US Constitution? Who was your immediate superior at the White House? Everything you did at the White House was under his authority -- or else you are personally responsible for having conducted an unauthorized operation, isn't that correct?

    3) Who owned the equipment that you sold to the Israelis, Lieutenant Colonel North?

    But the Iran-Contra investigating committee (both Reps and Senators, so we shouldn't just pick on the Elders), as well as John Nields and Arthur Liman, were too sophisticated for that. It's not that they failed to establish the legal facts. It's that they didn't realize it was a political proceeding. (For one thing, Nields should have had the sense to get a haircut first.)

    See, one of the problems with "sophisticated" questioning is that it takes what "everybody knows" for granted which paradoxically means that -- like Stephanopolous asking about Griswold -- the most important points aren't made to use as a foundation.

    Instead of asking Romney if he believes in the Constitutional right to privacy, which could seem like an easy, open question, Stephanopolous asked whether states have a right to ban contraception. I expect he phrased it that way because he wanted to tell the audience what the Constitutional right to privacy is about, both the Constitutional part (whether states can ban something) and the right to privacy part (contraception).

    It allowed Romney to scoff at the premise, without answering the question. SHould have been the other way around: get him to answer the premise, and scoff at the result -- if he can.

    But that's the craft of asking a question. If Romney had said yes, he believes in a Constitutional right to privacy, he would have conceded the revolutionary premise of Griswold, and follow up questions about contraception and abortion and gay rights would be much more productive.

    If he had said no (as Ron Paul would), he would have been on exactly the opposite side of the fence that Stephanopolous never did get to corral him with.

  • jjm on January 08, 2012 11:41 AM:

    Sounds like Mitt just wants to show off how his elite education didn't mean he LEARNED anything!

  • J.T. on January 08, 2012 11:50 AM:

    I think there's actually a place for questions about contraception in this race -- one of the candidates (the unGoogleable one) wants to ban contraception and the state of Missouri just had a referendum on "personhood" which would have effectively banned The Pill.

    Both of those things could have been pointed out when Romney said "I can't imagine a state banning contraception" and could have led to a discussion of privacy rights had Stephanopolous been competent instead of a show-off.

  • TCinLA on January 08, 2012 11:54 AM:

    The far right has always been far more upset by "Griswold than by Roe - they've just known all along that they have a better chance of getting people to agree with them over the latter, but opposing the right to contraception has always been their priority. I don't know how many here were around and old enough to be politically-aware back in 1965, but I remember the HOWLS from the far right were far worse than the yakkety-yak over Roe in 1973. And if Romney was in law school 1972-75 (which he was), I can guarantee he sat through many Socratic discussions about the right to privacy, since it was the big topic in law schools at the time. Maybe he was one of the morons in the back row shooting spitballs, but he heard all that stuff.

    And his religion has always been far more anti-contraception than even the Catholics? Ever notice that Morons, er, I mean Mormons, always have these big families and believe that pregnancy is a woman's "natural condition"???

  • TCinLA on January 08, 2012 12:31 PM:

    I think it might be very good to get some "public education" out there about Griswold. I just had a conversation with SWMBO, a feminist whose activism goes back to pre-Roe as a "Friend of Jane." And she interrupted what I was saying to ask "What's Griswold?" When I told her, she was surprised to realize she didn't know that. If someone as knowledgeable as she is doesn't know it, it's certain the Senate doesn't and the majority of Americans don't. Which means we need to get it out there so they realize how dangerous all these Republiscum are.

  • Kiweagle on January 08, 2012 1:13 PM:

    Preaching to the choir TCinLA. The fundamental problem of politics and the reporting of it is the lack of one absolutely essential ingredient: Context.

    Far too often we see reporters/ pundits/ bloggers and politicians make statements in a vacuum without any follow-up or understanding of the claims made. For instance, when someone says they believe in tax cuts, the first question to that person should be about whether or not they believe they pay for themselves. When someone says they believe in small government, you need to ask what parts of the government they would get rid of.

    And finally, when a Republican says that they vote for their party because they want less government, less nation-building, less debt, less spending, and less corruption (I could go on, but the point is made), the immediate follow-up question is ask if they are aware that their party has consistently achieved the exact opposite.

    P.S. First time I've had such scary Captcha words: "uitful Guantanamo".

  • markg8 on January 08, 2012 2:27 PM:

    No Steve it really was about contraception. Romney is apparently unaware - as are you - of Santorum's opposition to birth control. Stephanopolis was throwing a softball Mitt could have hit out of the park but he chose to play dumb or isn't paying attention to his closest opponent's positions. Santorum told the blog caffeinatedthoughts.com the following about contraception in October, "It's not okay. It's a license to do things in a sexual realm that is counter to how things are supposed to be." Santorrum also disagrees with the court decision in Griswold vs.CT. The day before the Iowa caucuses, Santorum told ABC's Jake Tapper, "It is not a constitutional right, the state has the right to pass whatever statues they have." Of course he contradicted himself telling CNN's John King on January 4 that he would not have supported the Connecticut anticontraception law because, "The government doesn't have a role to play in everything that, you know, that either people of faith or no faith think are wrong or immoral."

    Romney could have hit a homerun and didn't even swing and miss, he just left the bat on his shoulder. He might be able to get away with being so self absorbed he ignores the opposition in the GOP primary but he's not going to get away with that against Obama.

  • Quaker in a Basement on January 08, 2012 3:29 PM:

    What markg8 said.

    Romney's closest challenger for the nomination raised this "unusual question," not Stephanopolis.