“What if Roe goes?”

Doesn’t Griswold go with it?

… is a question being debated in the Blawgosphere.

I’d like to answer the question with a question: If Roe goes, why not Griswold? That’s the case in which the Court decided that Connecticut couldn’t ban the sale of contraceptives to married couples.

It was Griswold, not Roe, that first announced a right to privacy based on a penumbra inside an emanation wrapped in an enigma, or whatever the silly formula was. If the reasoning in Roe can’t stand, how can the reasoning in Griswold? And why should we be confident that states that ban sex toys won’t decide to ban, say Plan B, or the sale of any contraceptive to a minor without parental consent?

I’m not asking a question of Constitutional doctrine here; as Louis Hartz remarked, the notion that you can run a country based on Talmudic exegesis of an old text isn’t one that a philosopher can take seriously, though it may work as a focal point. But in terms of real-world results, do we really want the state legislatures (or worse, the initiative process) to decide about the mechanics of fertility control?

If we need a doctrinal cover, and the Roe/Griswold right to privacy can’t stand, then why not find that reproductive freedom is part of the liberty protected by the Fourteenth Amendment> The Court has already (not very plausibly) read the First Amendment into the Fourteenth, thus banning the state establishments of religion the First Amendment was in part designed to protect.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com