This week marks the 125th anniversary of the birth of my grandmother, Margaret Sanger. On speaking engagements around the country, the question I am most frequently asked is, “What would your grandmother think about the seemingly unending struggle over reproductive freedom?”
Well, she would be appalled, because the fight for the fundamental right of women to control their childbearing still goes on, but not surprised by how little attention the issue is getting from our presidential candidates.
My grandmother was born in 1879 and died in 1966, a year after the Supreme Court’s decision in Griswold v. Connecticut, which overturned that state’s Comstock law outlawing the use of birth-control devices by married couples. With diaphragms, condoms, and pills then in wide use everywhere, the Comstock law was clearly an anachronism. But to nullify it, the court needed to find a provision in the U.S. Constitution that the law contravened. This was easier said than done.
The court could not base a decision on the obvious assertion that the law was antiquated or out of step with reality. As Justice Potter Stewart put it in his Griswold dissent, “As a practical matter, the law is obviously unenforceable… But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution.” The court solved this problem by enunciating a constitutional right to privacy and then finding that the Comstock law violated it.
Justice William O. Douglas found that a key intent of the Bill of Rights was to create a zone of “personal privacy,” which was to be protected from unwarranted government intrusion. This zone of privacy was held to include decisions about marriage and childbearing. My grandmother died thinking the battle for reproductive freedom was won. And indeed, Griswold became the basis of the Roe v. Wade decision in 1973, which voided the Texas criminal abortion law.
But thirty years later, feverish efforts to reverse Roe are still going on. And it is not just Roe that is under attack; it is Griswold as well. The religious right questions the very right to decide when and how many children to have, and whether to use contraceptives. The Supreme Court reaffirmed this right to privacy last year in Lawrence v. Texas, which overturned the Texas criminal sodomy law by a 6-3 margin.
The next president is likely to appoint as many as three new justices, and could, with arch-conservative appointments, eliminate the constitutional right to privacy that the Griswold court found. Both parties understand what is at stake. Pro-choice and anti-abortion forces are running ads in swing states trying to educate voters.
But a closer look at the candidates and their national committees reveals a curious and disquieting silence on the issue. Neither candidate made any serious mention of the issue in his convention speech. although there are pointed references buried in their platforms, which no one reads, no mention of the Supreme Court, abortion or reproductive freedom is to be found in either party’s list of key agenda items, as published on their web sites.
It seems that neither party wants to risk offending swing voters by disclosing their true agenda. Polls indicate that swing voters, including moderate Republicans, do not want abortion criminalized, but neither do they want unrestricted access to abortion, especially by minors. The Republicans make an issue of parental consent, but threats to overturn Roe and recriminalize abortion get no mention by the Bush camp, nor – surprisingly – by John Kerry.
My grandmother would not be surprised to see politicians ducking this issue; after all, she saw Franklin Roosevelt do so for twelve years, despite Eleanor’s urgings that he endorse birth control. But she probably would be amazed that after thirty years of contentious debate the issue of reproductive freedom is still so politically toxic that neither party will say plainly what it wants.
Is reproductive freedom to be the dog that didn’t bark in the political night? Only if John Kerry allows it. He has everything to win by hammering the Republican Party’s hidden agenda to overturn Roe and Griswold, to eliminate the right to privacy, and to force women to bear children when it is not best for them or for their other children. If John Kerry places himself unequivocally on the side of a woman’s right to choose, then he will be seen as the true pro-family candidate and will reap the electoral benefits.