It’s about privacy, not contraception

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?”