Bench Memos

Senator Richard Durbin, D-Idiot?

Democratic senator Richard Durbin contends that the Hobby Lobby ruling violates the “fundamental premise” of Griswold v. Connecticut (1965), which held that a constitutional right of privacy protects the use of contraceptives by married persons (and which was extended some years later to unmarried persons). Durbin complains that Chief Justice Roberts and Justice Alito, as members of the Hobby Lobby majority, failed to live up to their statements in their confirmation hearings in which (per Durbin’s paraphrase) “they both said they stood by the Griswold decision.”

Senator Durbin is either a fool or a demagogue (or both). The constitutional right set forth in Griswold is a right against governmental interference, not a right to force a private employer to pay for your contraception. That explains why neither the Obama administration in its Hobby Lobby brief nor even Justice Ginsburg in her histrionic dissent even mentions Griswold.

As it happens, one opinion in Hobby Lobby does mention Griswold. That is Justice Alito’s majority opinion, which, as part of its tentative exploration whether the HHS mandate serves a compelling governmental interest, cites Griswold for the proposition that “Under our cases, women (and men) have a constitutional right to obtain contraceptives” (p. 39). Thus, beyond the fact that Hobby Lobby does not conflict at all with Griswold, Alito and Roberts expressly “stood by the Griswold decision” in Hobby Lobby.

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