ABC News’ Saturday night debate between the Republican candidates for president was mostly a forgettable affair. But there was one memorable moment, in which a gotcha question on social issues backfired on the moderators. The question, delivered by George Stephanopoulos, was designed not to illuminate, but to trap: “Do you believe that states have the right to ban contraception, or is that trumped by a constitutional right to privacy?” There is no good answer to this A-or-B question, and that was pretty obviously intentional.
To answer one way is to accept the contorted logic of the Supreme Court’s 1965 Griswold v. Connecticut decision, whose chief importance has nothing to do with contraception at all.
By ruling unconstitutional a state’s almost-never-enforced ban on contraceptives, Griswold effectively stripped states of traditional powers they had always exercised.
It created a new and unwritten (most conservatives would say “imaginary”) constitutional right to privacy. That right later formed the rationale for the Roe v. Wade decision, and for a regime of abortion without limits that most Americans — including many who support some legal abortion — reject.
But if you answer Stephanopoulos’ question the other way, then you’ve just said you want a new law banning contraception. No, you wouldn’t really be saying that — but your opponents will make the charge anyway, and use the clip to marginalize you in campaign ads down the road.
Just ask Rick Santorum, who has been falsely subjected to this accusation ever since he tied Mitt Romney in the Iowa caucuses last week.
Perhaps the best answer to this trick question was delivered by Justice Potter Stewart. Armed with a platform from which he could deliver a careful, nuanced answer that wouldn’t cost him an election, Stewart dissented from Griswold, beginning with a declaration that Connecticut’s contraceptive law (it banned not only their sale but their use as well) was “uncommonly silly.”
He went on: “[W]e 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. And that I cannot do.”
The candidates did not quote this from memory, of course, but they rose to the challenge all the same. It was not Santorum, but the moderate Mitt Romney who took the question, and then rubbed it liberally in Stephanopoulos’ face over the next several minutes.
“George, this is an unusual topic,” Romney began. “Given the fact that there’s no state that wants to do so, and given I don’t know of any candidate that wants to do so, you’re asking, could it constitutionally be done?”
Then turning to Ron Paul, he added brilliantly, “We could ask our constitutionalist here.”
Stephanopoulos pressed on in spite of this well-deserved mockery, and Romney hit back again, to applause: “George, I don’t know whether the state has the right to ban contraception. No state wants to. The idea of you putting forward things that states might want to do, that no state wants to do, and asking me whether they could do it or not, is kind of a silly thing, I think.”
Stephanopoulos continued even after this, drawing a resounding boo from the crowd in the debate hall — presumably also from millions of viewers at home.
Most of those viewers had probably gone to bed by the time the economy was even mentioned, despite the burning issue of high unemployment and continued attrition in the U.S. labor force.
After what seemed like an hour-long discussion designed to embarrass the candidates on social issues, Romney and Newt Gingrich finally teamed up to rebuke the questioners for framing the issue of same-sex marriage so lightly, ignoring the damage that some states’ changes in policy have done to Catholic Charities’ work in adoption and in helping victims of sex trafficking.
Romney and Gingrich are bitter rivals who have each spent millions trashing and sliming the other. That such an alliance between them could be formed against the debate moderators is a sign that something went terribly wrong on Saturday night.
David Freddoso is The Examiner’s online opinion editor. He can be reached at [email protected].
