I have always commented as to the extreme and indeed troubling irony over the HHS Contraception mandate. That is the seminal cases on this , Griswold v. Connecticut etc etc , really seem to stand for a principle that opposes the HHS Contraception mandate. That is there are some matter so personal and in which the Governments competence in is none that it it has to stay out.
As Prof Beckwith pointed out in tn the comments at this post :
Remember, that in Griswold v. Connecticut the Supreme Court grounded the right to contraceptive use in the newly found "right to privacy," a right that implied that on certain matters of intimacy the government was not fully competent to issue coercive judgments. To extend that right to allowing businesses and individuals not to pay for it, on the basis of a conscience exemption, makes perfect sense given the nature of the activity in question. After all, if you say that contraception is as medically essential as a blood transfusion, then it means that some citizens, like the minor children of Jehovah's Witnesses, may be fitted for contraception by the state against their will and the will of their parents. So, the analogy cuts both ways.
This all makes perfect sense so the question is why is this not happening .
Randy Barnett at his post recently Republican Candidates Must Abandon Judicial Conservatism for Constitutional Conservatism shows us the problem.
Pete’s column also proposes a way to counteract the phoney charge that Republicans are engaged in a “war on women” that smart lawyers like Cuccinelli and Ted Cruz have a hard time adopting:
Cuccinelli also needed to address the false Democrat War on Women and contraception allegations. He should have fired back that the nonsense McAuliffe and his Democrats were peddling would actually have been unconstitutional under the long established Supreme Court precedent of Griswold v. Connecticut.But this is not something that conservative Republicans can do if they are judicial conservatives who believe that the Court in Griswold was wrong to protect a right to use contraceptives. So the next question of a smart lawyer candidate who tries this response is, “Oh so you believe there is an unenumerated right of privacy?” And they have all be trained to answer this answer “no.” And the smarter and better trained they are as judicial conservatives, the more they are trapped by the accusation that state legislatures could ban contraceptives if they want, which then leads to the next questions is whether they think state legislatures ought to ban contraceptives. How they answer this question can then get themselves in trouble with parts of their socially conservative base.
In short, this is a morass for those conservative Republicans who have embraced judicial conservatism, and who are smart enough and well schooled enough to understand where the logic of their position truly leads. So they must clam up. Because Democrats now have their number, they will run this play until it can be stopped.....
I disagree with Barnett that there is any sort of viable social conservative movement that that wish to ban birth control that Republicans fear. During the Republican primary the GOP hopefuls at a debate were asked a question on this and seemed mystified that anyone would think they would want ban birth control. In fact Rick Santorum , devout Catholic and social conservative favorite at the time , had regularly voted funds for federally funded provided birth control under Title X !
Still his main point remains. Start talking about " Right tp Privacy " and then we get right into some important views of how the our Governing document must be interpreted. Talk of "penumbras" and "emanations" just gives many conservatives the hives.
Still while it is clear some conservatives seems to sadly gagged on this issue other are not. Therefore it is interesting that they have not really made this a issue or at least pointed out it more.