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Why Republicans want to roll back Americans' 'right to privacy'

The GOP is telling us exactly what it plans to do if not constrained by constitutional safeguards. It is not good.
Photo illustration: Red strips over pills and partial view of an elephant walking in the middle.
A GOP debate about a 1965 birth control court case is just the beginning.Anjali Nair / MSNBC; Getty Images

One day before Supreme Court nominee Judge Ketanji Brown Jackson’s confirmation hearings began, Sen. Marsha Blackburn, R-Tenn., released a video in which she unironically denounced liberals for wanting Supreme Court justices who will be “a rubber stamp for their cultural agenda,” while declaring that the 1965 Supreme Court decision that legalized a right to birth control was “constitutionally unsound.” Who says conservatives can’t be funny?

Griswold v. Connecticut stands for so much more than birth control — and that’s why the GOP wants to see it overturned.

But Blackburn wasn’t trying to be amusing. She was simply repeating the view that has been building for years on the right: that the Supreme Court’s seminal decision in Griswold v. Connecticut, which legalized access to birth control, needs to go. But Griswold stands for so much more than birth control — and that’s why Republicans want to see it overturned.

In the 7-2 Griswold v. Connecticut decision, the court recognized for the first time a constitutional “right to privacy,” which it found was violated by the state’s law that made it a crime to encourage people — in this case a married couple — to use birth control. From there, this “right to privacy” would be expanded in later Supreme Court decisions to extend beyond married couples to other personal liberties. Griswold became the building block for other noteworthy Supreme Court cases that much of the GOP disapproves of, from Roe v. Wade in 1973 to the 2003 Lawrence v. Texas decision that ruled state laws banning “homosexual sodomy” were unconstitutional to the 2015 Obergefell v. Hodges decision recognizing a constitutional right to same-sex marriage.

The courts in these landmark cases expressly relied on the Griswold court's recognition of a “right to privacy” in reaching their decisions. In Lawrence, for example, Justice Anthony Kennedy wrote in explaining the court’s rationale that “the most pertinent beginning point is our decision in Griswold.” From there, Kennedy explained that “the reasoning of Griswold could not be confined to the protection of rights of married adults,” thus invalidating “a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.”

This desire to overturn Griswold and potentially reverse later decisions that relied upon it is not new. During the 2012 presidential campaign, Rick Santorum slammed Griswold, saying the decision “created a new right, which in my view is judicial activism." Mitt Romney echoed that sentiment during that same campaign. And in 2019, the National Review published an article titled “The Farce of Griswold v. Connecticut,” in which the author argued that Griswold was “among the most indefensible bits of jurisprudential acrobatics in the entire American legal tradition.” He went on to make the case that Roe was wrongly decided since it relied on Griswold.

The GOP has always played the long game when it comes to its right-wing goals.

Now there seems to be a renewed push to achieve this, perhaps due to conservatives having a 6-3 advantage on the current Supreme Court. This helps explain Blackburn’s video and Indiana Sen. Mike Braun’s comments earlier this week slamming Griswold. It’s also why just last month three GOP candidates for Michigan attorney general denounced Griswold during a debate. As Matthew DePerno, the Donald Trump-endorsed attorney general candidate, declared: “Griswold, Roe v. Wade. Dobbs — these are all state right issues. ... It’s going to be a state right issue on all of these things — as it should be!”

The GOP is telling us that its goal is to overturn Griswold so it can then enact state laws consistent with its grotesquely reactionary views, from pushing to ban abortion to possibly criminalizing the LGBTQ community. Before you dismiss this as being over the top, keep in mind that the GOP has always played the long game when it comes to its right-wing goals.

In the 1980s, Republicans first began to push the view that the Second Amendment creates an individual constitutional right to own a gun. Behind the scenes, conservative politicians with help from the NRA went to work to build support in GOP circles to embrace this view. And after years of toiling to that goal, in 2008 the GOP-controlled U.S. Supreme Court in District of Columbia v. Heller finally delivered for them by finding that Americans had an “individual right” to bear arms.

We are also seeing this with the GOP’s nearly 50-year effort to overturn Roe v. Wade playing out in front of our eyes with the conservative-majority Supreme Court poised to chip away, if not overturn, Roe. If you want to see what many red states will look like if the GOP succeeds, just look at the law enacted last year in Arkansas that banned abortion from the first day of conception even in the cases of rape and incest, the only exception being to save the life of the mother. While that law was later blocked by a federal court, today the GOP is telling us what it plans to do if not constrained by constitutional safeguards.

Republicans are moving closer to utter control of every part of our lives based on these extreme beliefs, from banning books to banning school curricula on Black history (under guise of racist bans of “critical race theory”) to banning transgender girls and women from school sports to banning discussion of sexual orientation or gender identity in schools. They are now telling us their next goal is to overturn Griswold, along with the cases that relied on its reasoning, in the hope that it enables them to ban abortion, curtail access to birth control, ban marriage equality and even criminalize being gay. These are the stakes. The question is if enough people opposed to the GOP’s oppressive agenda are paying attention.