Opinion: Michigan GOP can have my birth control when they pry it from my cold, dead hands

If you're an American woman younger than 70 — maybe if you're a woman alive in America today — it is hard to imagine a world without birth control.

Almost all of us use contraception, even those of us with religious proscriptions against its use: A study by the Guttmacher Institute found that 99% of American women between the ages of 15 and 44 who have had sex have used contraception, including 98% of American Catholic women. These findings are confirmed in survey after survey — and by the world all around us, which no longer includes many families with seven or nine or 13 children.

It defies credulity that anyone in this country, outside the most extreme elements of our political and religious fringe, could oppose access to contraception in 2022.

Or so I thought, until three Michigan Republicans seeking their party's nomination for attorney general faced off in a debate sponsored by the Alcona County Republicans last Friday night.

More: Michigan GOP AG candidates criticize case that nixed law banning use of contraception

More: New poll reveals how Michiganders feel about abortion

In response to an audience member's question, each of the three — former Speaker of the House Tom Leonard, current state Rep. Ryan Berman, R-Commerce Twp., and attorney/election-fraud-conspiracy theorist Matthew DePerno — said he disagreed with the U.S. Supreme Court's 1965 ruling in Griswold v. Connecticut, the decision that barred states from denying married American couples the legal right to birth control.

In praise of states' rights

In Griswold, the justices found that the exercise of many of our constitutional rights are vested in a right to privacy, and that marital privacy trumped state interest in regulating contraception.

But the Republican AG candidates don't see it that way.

Leonard and Berman weren't initially sure what Griswold — a seminal case in American legal history that is often taught in high school — was about.

Once reminded, Leonard said he believed the court "trampled" on states' rights in the decision, and that it was "wrongly decided."

Berman, who used his phone to look the case up while Leonard was answering, said he intended to do further research, but that he was for "states' rights" and against "judicial activism."

Criticizing the court's ruling in Griswold, DePerno said "the privacy issue currently is unworkable," and affirmed his support of states' rights, nonsensically adding that "when the feds come and try to take our rights" Michiganders need to "hold the line."

If you're tempted to dismiss this as an innocuous theoretical debate about the power of the federal government, it's important to note that this language — "states' rights," and "judicial activism" — is often used by anti-abortion rights activists, and opponents of LBGTQ rights. Citing "states' rights" is a softer way to get to where they'd like to be: a time when women and LGBTQ people had few or no rights.

Goodbye to all that?

Griswold was the linchpin ruling for a host subsequent court decisions that collectively form the framework of modern American life.

It set the stage for the court's 1972 ruling in Eisenstadt v Baird, in which justices struck down a Massachusetts law that barred unmarried couples from accessing contraception. The court ruled that having granted such access to married couples, there was no rational basis for denying birth control to unmarried couples.

Next, of course, was Roe v. Wade, the landmark 1973 case that determined a woman's right to privacy extended to the decision to have an abortion. Laws banning abortion in Michigan are still on the books, and would become enforceable again if Roe were overturned.

Also based on the right to privacy was the court's decision in Lawrence v. Texas, the 2003 case that rendered bans of same-sex sex acts illegal. Laws barring "sodomy," defined as both anal and oral sex — take note, here, heterosexual couples — are still inscribed in Michigan's penal code, and carry a penalty of up to 15 years in prison. Just like Roe, if Lawrence were overturned, those laws would again become enforceable.

Then, of course, comes Obergefell v. Hodges, the 2015 high court ruling that overturned laws barring same-sex marriage, likewise rooted in the right to privacy. Michigan's ban on same-sex marriage remains not only a part of state law, but in our state's constitution.

It's worth noting that the four conservative justices who disagreed with the majority in Obergfell said that gay marriage was a question of states' rights. Former Michigan Attorney General Bill Schuette argued that same-sex couples should be excluded from legal marriage because they could not procreate, prompting skeptics to wonder whether heterosexual couples who are infertile, elderly or who choose contraception should be similarly forbidden to marry.

A Jenga tower of rights

Taken collectively, says state Attorney General Dana Nessel, who will face one of the three men in the general election this November, Griswold and its legal progeny are a guarantee of equal treatment under the law.

"Why have a United States of America if you’re not going to have an understanding that no matter where you live in the U.S., you have the same protections?" Nessel said Monday. "When you say 'states’ rights,' whether you’re talking about Loving v. Virginia" — the ruling that struck down laws barring members of different races from marrying — "but also freedom of association cases, whether or not you can discriminate against a person because they hang out with people of another race or marry someone of the opposite sex. You have a huge line of cases that if you eliminate in favor of states' rights, all the important decisions of the last 50 or 60 years that are fundamental to being an American no longer exist."

Nessel said it's also important to consider the makeup of the now-conservative-majority U.S. Supreme Court, poised, as many believe, to overturn Roe this summer. Would this court have decided in favor of Griswold, or Obergefell? It's hard to imagine.

If the court rules broadly in Dobbs v. Jackson Women's Health Organization, Nessel says, it could undermine all of those right-to-privacy cases.

"It's a Jenga tower, and when you pull out even one piece it collapses," she said.

I've always understood that a lot of people, even those who support reproductive choice, have complex feelings about abortion. But practically no one believes that birth control is complicated.

Outside of these few Republicans, I think I'm right.

That we can control whether, when and how often we become pregnant is the sine qua non of life for American women (and their male partners). Birth control allows us to participate in the economy, in politics, to improve our personal and financial situations, all because we can become mothers in our own time, on our own terms.

And I believe this is a right American women will fight to defend.

Nancy Kaffer is a columnist and member of the Free Press editorial board. She has covered local, state and national politics for two decades. Contact: nkaffer@freepress.com. Become a subscriber at Freep.com.

This article originally appeared on Detroit Free Press: Opinion: Michigan GOP take on Griswold birth control ruling disturbing