Monday, June 04, 2007

The Contraception Cases

Over at Bench Memos, Ed Whelan quotes the Supreme Court on Eisenstadt v. Baird, the case that invited us all to believe that we are entitled, not only to the use of contraception, but to the outcome that perfectly functioning contraception would provide. Here is Ed:
Mar. 22 1972—Who knew that contraception had such generative power? A mere seven years after Justice Douglas’s majority opinion in Griswold v. Connecticut (a contrived case involving a law that was not being enforced) holds that married persons have a right to contraception hidden in the “penumbras” and “emanations” surrounding a right to marital privacy, Justice Brennan’s majority opinion in Eisenstadt v. Baird extends that right to unmarried persons. Dismissing as immaterial the marital relationship that Douglas had posited to be pivotal, Brennan, in a wondrous bit of bootstrapping, uses the Griswold holding as the basis for an equal-protection ruling (“whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike”) that undermines the very foundation of Griswold.

Brennan’s hijinx don’t end there. With Roe v. Wade already pending (it was first argued in December 1971), Brennan smuggles into his Eisenstadt opinion this assertion: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” One year later, Justice Blackmun’s majority opinion in Roe quotes this passage immediately before declaring that “[t]hat right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”

That "decision to bear or beget a child," is not in fact anybody's to make, and contraception does not actually allow us to make that choice. All contraception does is to change the odds of any given act of intercourse resulting in pregnancy. Only an unlimited abortion license can give us that right.

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