Newsday, August 30, 2005
We must thank the zealots at the Food and Drug Administration for ginning up another so-called controversy over birth control.
The agency has made it all the more crucial for Supreme Court nominee John G. Roberts to explain what he means when he says privacy is merely a "so-called" right.
The FDA would not normally have a thing to do with a Supreme Court nomination. But these are not normal times. The agency on Friday again refused to approve over-the-counter sales of the "morning after" pill, a birth control method that the medical community - and the FDA's own scientists - long ago concluded can be used safely without prescription to prevent pregnancy after unprotected sex.
The objection the FDA's political leadership now raises - that it is too complicated to sell emergency contraception to those 17 and older without a prescription while selling it to younger teenagers only with a prescription - is novel. Somehow American retailers are sufficiently ingenious to limit the sale of alcohol and cigarettes - even gum that helps people quit smoking - only to adults.
The official objections to emergency contraception aren't about medicine or even marketing. They're about politics. The right wing has expanded its opposition to abortion into an assault on ordinary birth control.
Cultural conservatives know they cannot sweep through the nation's medicine cabinets, dumping birth control pills that are taken regularly by 11.6 million American women. So instead, the right has begun employing the same tactics against safe, legal birth control that it has used in its war against safe, legal abortion.
It creates diversions and distortions to confuse public debate and make people believe there must be something amiss. In this case, the right has created the impression that the morning-after pill is tantamount to an abortion pill, when it isn't. It works precisely the way ordinary birth control pills do - it is nothing but high-dose birth control.
Social conservatives also promote "conscience" legislation in the states - laws that allow pharmacists to refuse to fill valid prescriptions for birth control. Four states already have enacted such laws, and proposals are pending in 16 more, according to the Center for Reproductive Rights.
Acquiescence to right-wing opposition to birth control is a new litmus test for Republicans with ambition. Governors George Pataki of New York and Mitt Romney of Massachusetts, both moderates, recently vetoed bills that would have eased access to the morning-after pill. They think this eases their path to the Oval Office.
What does this have to do with Roberts' path to the Supreme Court? Everything.
The "right to privacy" that is the foundation for the landmark Roe v. Wade decision on abortion wasn't created with that case. Its ancestry is traced to a 1965 case involving the right of a married couple to use birth control.
In Griswold v. Connecticut, the Supreme Court threw out a law that prohibited the use of contraception. In the intimate realm of marriage, Justice William O. Douglas wrote for the majority, "we deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system."
It is this right - and this very case - for which Roberts has shown disdain. In a 1981 memo he disparaged it as the "so-called right to privacy." In a draft article he apparently authored for then-Attorney General William French Smith, Roberts praised Justice Hugo Black's dissent in the landmark birth control case. At his later confirmation hearing to become a circuit court judge, Roberts said he would respect precedent with regard to privacy rights. What would he do as a Supreme Court justice who can set precedent?
A future court may be asked to choose between the rights of a druggist who refuses to fill a birth control prescription and those of a woman whose doctor wrote it. It could get a case involving whether a woman who has had an abortion may keep her medical files private or must relinquish them to political officials seeking to determine if it was medically necessary. It could be asked to decide whether the FDA can use social - not medical - considerations in deciding on birth control drugs.
The constitutional right to privacy is not and has never been only about abortion. The right wing understands this. It's time the majority of American women - and men - to realize it, too.