In the wake of Dobbs, spurred by a clear threat best articulated in Clarence Thomas’ concurring opinion, the U.S. House of Representatives has passed a bill that would guarantee continued access to contraception.
Actually, that sentence is somewhat inaccurate: the Democrats in the House passed the measure; they were able to garner exactly eight Republican votes.
Think about that.
The measure passed 228 to 195, meaning that almost all Republicans refused to protect an unrestricted right to the purchase and use of contraception. Those eight votes represented only slightly more Republican support than two bills that the House passed the prior week, which would have guaranteed access to abortion. Almost all Republicans united in opposition to that measure.
Worse still, the linked article from the Times reports that the contraceptive bill is “almost certain to fail in the evenly divided Senate, where most Republicans are also likely to be opposed.”
Again–think about that. Today’s GOP wants government to be able to control one of the most intimate decisions citizens can make–a decision that is fundamentally private, a decision that is absolutely none of government’s business
“An extreme G.O.P., an extreme Supreme Court, they want to take away your freedom and your control over your own lives,” said Representative Angie Craig, Democrat of Minnesota. “We are in an absurd time.”
She said before the vote that “quite frankly, I’m appalled that we have to vote on this damn bill at all. This is not an extremist issue. This is an extremist G.O.P.”..
Half of the eight Republicans who broke with their party to support the measure are retiring from Congress, including Representatives Anthony Gonzalez of Ohio, John Katko of New York, Adam Kinzinger of Illinois and Fred Upton of Michigan. The remainder — Representatives Liz Cheney of Wyoming, Brian Fitzpatrick of Pennsylvania, Nancy Mace of South Carolina and María Elvira Salazar of Florida — have sought to appeal to moderates and independent voters to bolster their re-election bids.
In Griswold v. Connecticut–a 1965 case–William O. Douglas’s majority opinion reflected the logic of its conclusion. He wrote “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.” The majority found a right to privacy–the doctrine of substantive due process that was explicitly undermined in Dobbs–in the language of several of the amendments, which Douglas noted would be difficult or impossible to respect without the implicit recognition of such an underlying right. In a concurrence, Justice Goldberg found that same right in the Ninth Amendment, and Justices White and Harlan argued that privacy is protected by the due process clause of the Fourteenth Amendment.
Wherever it resided–in a “penumbra” or the 14th Amendment–they agreed on its presence and importance.
The bottom line–a line virtually all Americans have come to rely upon–is that there is a limit to decisions that government may legitimately make. The very language of that libertarian premise I often quote indicates where that line is to be drawn: We the People have the right to live our lives in accordance with our own moral, ethical and religious beliefs, free of government restrictions, so long as we are not thereby harming the person or property of others, and so long as we are willing to grant an equal right to others.
Government, in other words, has the right–indeed, the obligation–to intervene when our behaviors are harming people who haven’t consented to that harm. Government must leave us alone–in Justice Brandeis felicitous formulation–otherwise. In my far less felicitous framing, the question is: who decides? If my beliefs or behaviors aren’t hurting anyone else, the decision must rest with me.
There can obviously be debates about the nature of harm. (Does a refusal to wear a seatbelt threaten others and justify seatbelt laws? how?) But that isn’t what today’s social issue debates are about. Today’s GOP is a White Nationalist Christian cult, intent upon breaching any right to self-determination that is inconsistent with its twisted theology–a theology not shared–indeed,rebutted– by many genuine Christians.
To the Americans who have relied on their right to direct their own lives for the past fifty years–who have pooh-poohed warnings about the Christian Taliban, confident that their right to self-determination was secure–Congress has sent a message. It can happen here.
In fact, it is happening. Right now.
By Sheila Kennedy July 24, 2022