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The GOP, Privacy and Reproductive Rights, and the Backlash

The GOP Presidential hopefuls have let the contraception genie out of the bottle, and there is no stuffing her back in now.  Rick Santorum has been frank about his opposition to contraception (and, of course, abortion), with Mitt Romney now joining the chorus with his promise to “get rid” of Planned Parenthood.  It is an interesting tack to take, in light of two facts: A sizable majority of the country is not opposed to contraception, and the GOP will need independent and moderate voters if it is to defeat President Obama.

The debate has done all women a favor, though, by spotlighting the anti-contraception views of some in the Party.  It is well-known that the Roman Catholic bishops, some evangelical church pastors, and some Orthodox Jewish rabbis (yes, all men) are opposed to contraception.  However, it is very helpful for voters to know that a man who seeks the Presidency is also publicly opposed to contraception.  This way, voters can take a full measure of each candidate’s vision of the future.

The United States has not had an overt public policy devoted to keeping couples from obtaining contraception for decades.  The liberation of women in the 60s and 70s was due in no small part to the Supreme Court’s decision in Griswold v. Connecticut, which identified a right of privacy that encompassed a right to obtain contraception.  In Griswold, Connecticut claimed it was interested in preventing adultery, but of course it was also making it impossible for couples to engage in family planning.  And, of course, family planning is essential for women who seek to fulfill their full potential, because a woman who is having one baby after another is far less likely to be able to be a successful lawyer, doctor, or executive.  It is simply the human condition that no one can literally “do it all.”

Here is what happens when the vast majority of women and men can’t get contraception: they have kids. So in the land of the Republican primaries, we are all pregnant, recently pregnant, or just about to get pregnant.

Today’s models for this lifestyle are the Duggars, of reality TV fame, who have even campaigned for Santorum.  In the old days, in Ireland, Irish Catholic families would have 20 children or more. Those Irish women always looked so tired; it seemed a hard way to go through life.  But first and foremost, such women never became lawyers, doctors, or political leaders.  How could they?

We have a prime example in our culture right now of what happens to young women who have children early and then don’t stop: the Fundamentalist Mormons.  Girls get pregnant soon after menstruation starts, and as often as possible thereafter (for the greater eternal glory of the man).  Accordingly, high school becomes dispensable, as, of course, do college and graduate school.  These girls may not be barefoot and pregnant, but they are certainly uneducated and pregnant.  And if they ever seek to escape their predicament, they find that they lack the skills needed to survive.

The views of these girls’ families are reflected, unfortunately, in the actions of some state legislatures.  In the last year, there has been a sudden increase in new state laws that pile on new restrictions against privacy rights.  Utah just passed a law that provides that if there is any sex education in the schools, it must be abstinence-only (despite the many studies showing the inefficacy of such an approach).  Utah’s law also mandates that neither contraception nor homosexuality may be mentioned.  Moreover, Ohio proposed a bill that banned physician assistants from inserting the IUD, a form of contraception that is disfavored by Catholics and evangelical Protestants opposed to abortion.

Not Only Anti-Contraception Legislation, but Also Anti-Abortion Legislation, Is Becoming More Common in Certain States

There has been an uptick in anti-abortion legislation in the past year, as well.  For example, South Dakota, Texas, and North Carolina added new waiting periods that must pass before a woman can procure an abortion.  In South Dakota, the law required a woman to obtain in-person counseling at the facility 72 hours before the procedure, and in the meantime, she was required to visit a pregnancy crisis center.  The application of that law was enjoined by a federal district court on the ground that the plaintiffs were likely to succeed on their claims that the law creates an undue burden on women, as well as violating the First Amendment rights of women and their doctors. Planned Parenthood, et al. v. Daugaard, No. CIV. 11-4071-KES (D.S.D  June 30, 2011).  Meanwhile, North Carolina and Texas have instituted 24-hour waiting periods, which are now in effect.  North Carolina did so by overriding their female Governor’s veto.

Moreover, Texas and North Carolina also enacted ultrasound mandates, which require the woman to have an ultrasound before the procedure, and require the doctor to show and/or describe the image to the woman before the procedure.  These provisions were enjoined as undue burdens on the abortion right.  However, Texas’s mandatory ultrasound law was recently reinstated by a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, in a highly controversial ruling that many observers say is a misapplication of the law.  Arizona, Florida, and Kansas, in contrast, simply offer the woman, after her mandatory, non-medically required ultrasound, the opportunity to view, or to hear the doctor describe, the image.  Those regulations are currently in place and in effect.  In addition, Virginia recently enacted a similar forced-ultrasound law, which was signed by the Governor last month.  The drive to control women’s reproductive decisions is truly remarkable in this era, when one considers both the expense of an ultrasound, and the fact that these laws are mandating ultrasounds that are not medically necessary.

In a chilling echo of “Big Brother,” there is also the recently proposed Arizona bill that would protect doctors from being sued if they fail to tell their female patients about birth defects that might lead the woman to choose an abortion.  Similarly, Kansas has been considering banning malpractice suits against doctors who lie to women seeking abortions.

How Female Legislators Are Fighting Against This New Assault on Women’s Rights

There was a time when women were property, and when they did not have the vote.  And it was not so long ago.  Last century, in fact.  Then, women were not in the ranks of government, nor did they hold other positions of leadership in society, and, therefore, they were not participants in the creation of the laws governing their bodies.  Times have changed dramatically.  Women do have real power now, and  fortunately, female legislators, especially, are not ignoring the increased interest politicians and legislatures have recently shown in regulating and reducing their choices when it comes to contraception and/or abortion.

Turnabout apparently is fair play in the contraception battleground.  In Ohio, Sen. Nina Turner introduced a bill making it harder for men to obtain Viagra in response to the anti-contraception legislation.

Along the same lines, an Illinois legislator proposed a bill to make it more difficult for men to obtain Viagra in response to the proposed mandatory ultrasound bill.

Similarly, in Virginia, Sen. Janet Howell, attached an amendment to an anti-abortion bill that would require men to have rectal exams and cardiac stress tests before they could obtain prescriptions for erectile dysfunction medication, such as Viagra.

In Oklahoma, Sen. Constance Johnson introduced a bill that would regulate “spilled semen,” or “non-procreative ejaculation.”  Her point was that if women’s procreation potential could be so tightly regulated by the state, then so could a man’s.  After all, it takes two to make a baby, and his “potential life” is as necessary as hers!

Not to be kept out of the fun, the Wilmington City Council responded to the cultural atmospherics over contraception and abortion by designating “personhood” rights for sperm, and in Georgia, an anti-vasectomy bill introduced by Rep. Yasmin Neal went “viral,” resulting in numerous media appearances and national fame for the state representative.

I have a few modest proposals, myself, in this area.  First, how about a law that requires a man to wait 72 hours between an attempt to purchase condoms and actually receiving them?  In the intervening 72 hours, he must view a graphic video of a woman giving birth to a baby, and immediately afterward, a doctor must read to him a detailed account of how much it will cost to raise and educate (including college) that baby.  He must then sign a form—which must be notarized—agreeing to have sex only for the purpose of procreation.

Or, how about bills mandating state and/or federal de-funding of any health facility that treats prostate disease or male breast cancer?  If Pap smears and breast exams for women are on the budgetary chopping block, so should be the treatment of the comparable male body parts.

Finally, let’s just go back to that pre-Griswold era and criminalize sex outside marriage: teenage sex, adulterous sex, fiancé sex, sex between seniors who don’t want to get married due to complicated inheritance issues, and Hollywood sex, on screen or off.  And there should be steeper penalties for hypocrite sex: For instance, any elected official preaching against sex outside marriage who has sex outside marriage himself or herself should be sent to jail twice as long as anyone else.

The Legislation That Women Representatives Have Proposed May Sound Humorous, but the Issue They Highlight Is Deadly Serious—and Legislators and Candidates Ignore It at Their Peril

Unwilling to be the victims of aggressive legislation intended to reduce their life choices, these successful female legislators are sending a message of power.  Although some of the legislation may read as if it were parodic, the Republicans ought to take it very seriously indeed—for its point is deadly serious.

The consequences of legislators’ ignoring that point may be deadly serious, too. The polls indicate that the Republicans’ move into this delicate territory may cost them the election.  Women are traditionally slightly more likely to vote Democratic, but in the 2010 midterm election—which was, of course, dominated by the still-weak economy—moderate women helped put the Tea Party Republicans in control of many state legislatures.  But, in a February 2012 New York Times/CBS News poll, President Obama finished ahead of Mr. Romney/Mr. Santorum among all women by 57 % to 37%. Other polls have the gap between the President and Mr. Romney at 59%-38%.  Perhaps more telling, according to a Washington Post/Pew poll released last week, the President is now leading Mr. Romney among white women—a group the President actually lost to John McCain in 2008—by 52%-46% margin.

Further, advancing these misogynistic policy points may resonate far beyond the 2012 Presidential contest.  Last summer, women polled were nearly within the statistical margin of error as to which party should control Congress after the 2012 elections (46% (D)-42% (R)). However, in a Wall Street Journal/CBS poll released last week, that gap among women has widened to 15% in favor of Democrats this November (51% (D)-36% (R)). With a gender gap of 15%-20% in favor of Democrats, and women making up the majority of the electorate—casting about 8 million more votes nationwide than men in 2008—the math doesn’t look good for the GOP in November if they continue down this path.  Recall that President Obama won over John McCain in an electoral landslide with only a 13% advantage among women voters.

The prevailing Republican worldview, if made real, would force women out of the workplace by unplannable pregnancies.  That surely is not a viable job creation strategy for a working family.  Nor is it a viable job creation strategy for a national party.

Marci A. HamiltonMarci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts, www.RFRAperils.com, and statutes of limitations for child sex abuse, www.sol-reform.com. Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is hamilton02@aol.com.
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  • serious_news_junkie

    If the public knew what the Duggar family actually believes,
    even Rick Santorum would be embarrassed to use them as campaign surrogates.  Most Americans—even most conservative
    Christians—would be aghast to learn what these sweethearts of reality TV actually
    teach their children.  The Duggars’ bizarre, misogynistic, and downright dangerous
    religious beliefs are more akin to what one would expect to find in a Mormon polygamist
    cult or a radical Islamic sect than what one typically finds in protestant churches.  Of course, if the
    Duggars practiced Islamic sharia law or belonged to a fundamentalist Mormon cult,
    they wouldn’t be appearing in quirky human interest segments on ‘Good Morning
    America'; they’d be appearing in an exposé on ’20/20.’  But because they’re
    part of a radical CHRISTIAN sect, the media simply accepts and perpetuates
    their well-honed façade as a large, happy family that just happens to have
    old-fashioned values.  Because most of the major news outlets face
    constant accusations of being “left-leaning” and
    “anti-Christian,” and because the Duggars are so wildly popular in
    middle America, most journalists are too afraid to explore the family’s beliefs
    and acknowledge that the Duggars are actually disciples of a fanatical cult: 
    http://the-duggar-cult.angelfire.com/

  • Wingnut34415

    This is total BS! There  are no laws on the books or planned to stop contraception!!!!  This is nothing but a red herring.   

    • http://twitter.com/SallyStrange Sally Strange

       What’s that saying about rivers in Egypt?…

      • sebastian

        Well, he does go by “Wingnut34415″

      • sebastian

        Well, he does go by “Wingnut34415″

  • Alison Gokal

    What is the greater evil in the eyes of the anti-contraceptive supporters: abortion or contraception?  While both are considered immoral in the eyes of some, I would speculate that abortion is the greater evil.  But that is merely speculation.

    Futher, the issue begs the question of where is the line drawn between church and state?  While each canidate and politician has every right to hold his or her religious views, the first amendment clearly prevents the legislation of religious practice (or restriction).  At the same time, legislation forcing a religious institution to act in a manner contrary to that religious institution is also a violation of the first amendment. 

    Removing the debate from the political/election banter may actually enable all sides to come to a clear solution, but that is just wishful thinking.

  • PatTibbs

    The answer to this problem is definitely to get more women elected to public office.

  • caswepa1

    Is this the Republican answer to putting men back to work when they come home from a war a Republican got us into by lying and into an economy that is struggling because of Republican support of corporate greed.  Really?  Can’t be, can it?  How low do they have to go before THEY HAVE TO GO!!!

  • http://twitter.com/michellesuf michellesuf

    Are there really enough men voting for the Republicant get contraception anti-women laws on the books?  I kinda think there are more women and critically thinking men to make the point that the Republicant’s win.

  • Theonlyjunedoe

    At this point, I am so completely bothered by the recent activities, that I guess I feel that there is not much left that to take the GOP’s jobs, and also, just quit having sex. 

  • BGerry

    Thank you so much for this lucid and informative article.  I’m going to send it to all my friends.

  • Pingback: The Idiocy Backlash « Montana Cowgirl Blog

  • Adam Shun

    The whole reason this even came about was the attack on our religious liberties by the Obama administration.  I have no issues with contraception and am not Catholic, Orthodox Jewish, or part of any other religion that opposes contraception.  However I don’t believe the government has the right to tell religious organizations that do oppose it that they have to go against their conscience and provide it.

    • Mark

      The point of the Obama administration was a constitutional one,  and it is as follows, there is a separation between Church and state, so the state does not get to tell anyone who, what or where to worship, but when one becomes a public sector employer, then said religious organization, does not get or have the right to tell their employees how to behave, nor do they get the right to impinge individual freedoms and monitor their employees behavior in terms of contraception and the rest.

 

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