THE STATEMENTS AT ISSUE:

“Americans may disagree about what is sexually appropriate for their children. And everyone surely wishes to prevent children from having babies. But public policy should be aimed at involving, rather than marginalizing, parents. … The debate about Plan B is fundamentally about whether government or parents have ultimate authority over their children’s well-being.”

– Kathleen Parker, Washington Post columnist in an op-ed article on May 5, titled “Prude or prudent?” commenting on the Food and Drug Administration decision to make the pregnancy-preventing drug Plan B available over-the-counter and without a prescription to girls as young as 15.

“This case involves the constitutional right to obtain and use contraceptives.  The restriction on the sale of time-sensitive [Plan B] contraceptives to pharmacies and health clinics, which affects all women, implicates this right.”

– Senior U.S. District Judge Edward R. Korman of Brooklyn, New York, in a decision on April 5 in the case of Tummino v. Hamburg, ordering the Food and Drug Administration to remove all age and retail sale restrictions on the availability of Plan B pills.

WE CHECKED THE CONSTITUTION, AND…

The Constitution, of course, does not set up the federal government as a super-parent to the nation’s children, displacing their own parents. When the Constitution is understood to protect rights for children, it is not a zero-sum game: Just because children—especially teenagers—have rights, does not mean that parents must give up their own rights.

A child with rights is on the way toward becoming a better citizen—surely a goal that most parents support. And the Constitution makes room for parents to shape how their children use the rights that they have; having rights includes the opportunity to learn how to use them sensibly, and parents surely can teach those lessons.

The factual reality is that teenagers do have a constitutional right to obtain contraceptives, under a 1977 Supreme Court decision in the case of Carey v. Population Services International. In that ruling, the court took note of studies that showed that “with or without access to contraceptives, the incidence of sexual activity among minors is high, and the consequences of such activity are frequently devastating.”

Not all members of the Supreme Court have joined in what has been a steady expansion of free-standing rights for minors. Two years ago, for example, Justice Clarence Thomas wrote that “the historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children.” But that was a view that he alone expressed, in a case in which the majority recognized a right of minors to have access to video games that had violent content.

The more prevalent constitutional understanding is that children, while they are more vulnerable and impressionable and thus need substantial parental protection, may also be in need of protection by government. The more important to a child’s personal identity a constitutional right may be, the more likely courts will respect it as an independent right. That certainly has been true in disputes over a constitutional right of a minor to access to birth control, and to abortion.

A teenage girl’s interest in avoiding pregnancy, or in dealing with a pregnancy after it develops, is of constitutional dimensions, the courts have said, precisely because it is vital to her development and her chance to grow at a more measured pace into maturity. Most parents, no doubt, want that for their daughters, and a government policy that makes preventive or corrective measures more accessible is aimed at reinforcing both the girl’s interest, and her parents support for that interest.

In the Plan B controversy, two opposing views of a policy of greater access have brought out fundamentally different cultural perspectives. There are those, like columnist Kathleen Parker, quoted above, who see such a policy as almost certainly intruding on parental authority, as a government-knows-best approach. Others, even more hostile to Plan B access, argue that such access inevitably will encourage younger and younger girls to engage prematurely in sexual activity.

But on the other side, advocates of greater access to Plan B are persuaded that teens are going to enter into sexual activity at earlier ages as social trends change and not as a result of the availability of contraceptives, and that the role of government is to provide them with a means to protect themselves after they have been drawn into sexual activity.

The role of the Constitution is not to reconcile those different perspectives; indeed, the opposing views start from such fundamentally different views of government that they may not be capable of reconciliation under any circumstances.

But the Constitution might have a mediating effect between such polar opposites, if Americans were able to develop a stronger habit of seeing constitutional rights not as a relaxation of all restraint, or as an invitation to indulge whimsically in excess, but rather as a gateway toward social and civic maturity. That might start at a very simple level, perhaps as simple as having a dinner-table conversation about what it means to have rights in the first place.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

Recent Constitution Daily Stories
Should Congress see a pay cut or a pay raise?
Happy birthday, 27th Amendment!
Japan’s constitutional changes could echo through Asia

Alexander Hamilton (Wikimedia Commons)

The 1800 election?  Thomas Jefferson won the presidency in the so-called “Jeffersonian Revolution.” But what made that election “revolutionary?”

First, it was the first transfer of power in American politics—in this case, from the Federalists to the Anti-Federalists. Second, it was the first presidential election where political parties played a major role.

Third, it began the country’s move away from Classical Republicanism and toward a true democracy. Before the 1800 election, the elite of the country—the Washingtons, the Hamiltons, the Madisons (for a time), and the Adams’—had run the country.

But something was beginning to happen in the country that the Federalists elite missed and that caused them to lose the presidency and ultimately led to their demise. What was it? Demographics.

Jefferson won the 1800 election, and in the election of 1804, he crushed his opponent, Charles Cotesworth Pinckney, a fellow Southerner, in the Electoral College by a margin of 162 to 14.  Thereafter, the Federalist Party faded away to the point that in the 1820 election, they didn’t even nominate a candidate.

The Anti-Federalists better understood the impact of parties, and they formed political “tickets” before the Federalists did.

Alexander Hamilton was instrumental in bringing partisan politics to New York City during the lead-up to the 1800 election. But other Federalists held true to the traditional Classic Republicanism, which shunned the idea of even campaigning for office.

What was the Federalists’ reaction to being voted out of national office? They went home and concentrated on local offices—never to be heard from again on the national scene.

What role did demographics play in this result?

Recent Constitution Daily Stories

Busting some myths about the Founding Fathers and marijuana
What the Framers would say about the new marijuana state laws
Puerto Rico’s bid for statehood seems like a long shot

The Federalists failed to appreciate the emergence of “middling men,” which may be thought of in today’s parlance as the “middle class.” As Gordon Wood describes in his book, Empire of Liberty, the country’s population at the end of the 18th century was exploding.

Between 1800 and 1810 the national population increased from 5 million to 7 million. During the same time, the population in Ohio went from 45,000 to 230,000: over a five-fold increase. Additionally, the population was moving westward. Territories were becoming states bringing many new voters into the voting booth.

The people in those areas tended to be much more independent than Easterners; they were less loyal to the traditional leadership (the elite), and they voted for people “like them.”

Two other developments resulted in middling men having increasing political power.

First, property requirements for voting were being reduced and second, more “non-elitist” men were acquiring property.  The combined result was a seismic shift of political power away from the Federalist doctrine and candidates, and toward an American democracy reflecting “the people.”

Fast forward to 2012. If anything is clear from this election, it is the fundamental shift away from the “white male voter” and the emerging—perhaps dominating—power of voter groups—or “factions” as James Madison described in his Federalist No. 10.

After the 1800 election, the Federalists were reduced to local elections and eventually faded away. They ignored changing voter demographics.

If present-day Republicans do the same, history may, indeed, repeat itself. Yes, they may be able to win local, district-wide elections, but state-wide and national contests will be beyond their reach.

Donald Applestein is a retired attorney and an experience guide in the National Constitution Center’s Public Programs Department.

The statements at issue:

“The proposed anti-abortion measure called the Personhood Amendment won’t be on the ballot, Colorado Secretary of State Scott Gessler announced Wednesday morning. It fell short of the required number of petition signatures by 3,859, he said.”

– Electra Draper, reporter for The Denver Post, in a story on the newspaper’s web site August 28.

“We have hired an election attorney. We are confident we will be on the ballot in November. We’re certain of it.”

– Jennifer Mason, spokeswoman for the organization Personhood Colorado, as quoted in Ms. Draper’s Denver Post story.

We checked the Constitution, and…

America’s basic document gives the states a large measure of control over their own elections, so those who seek to put ballot measures before the voters are not often successful when they try to enlist the courts to salvage a measure that officials have found did not make the cut–as Colorado officials appear to have done on the proposed “Personhood Amendment.”

If the state’s chief election officer is right that “Initiative 46” did not have enough voter signatures to put it to a test of the voters in November, that would be the seventh state this year where such attempts have faltered.

And, in an eighth state, Oklahoma, the state Supreme Court in April barred “Initiative 395” from the ballot there even before proponents could start gathering signatures in support of it. Colorado voters twice before had explicitly voted down such a measure, as did Mississippi voters last year.

Across the country, those who favor putting into state law or state constitutions full legal protection for a human being “from the beginning of development of that human being” have been pressing that issue as a priority for the ongoing “right to life” movement.

Their efforts got explicit endorsement on Tuesday in the national Republican Party’s approval at the Tampa convention of a fetal personhood plank in the platform, and Republican presidential nominee Mitt Romney is on record in favor of the idea.

Even if, however, a court does clear the way this year for a ballot test of the Amendment in Colorado, that proposal has a long way to go before it could have an actual impact on peoples’ lives and on the lives of pregnant women contemplating abortion. For one thing, the measure runs flatly up against a still-intact view of the Supreme Court: that the Constitution recognizes a “person” only after the moment of live birth.

When Oklahoma’s Supreme Court blocked “Initiative 395,” it concluded that “the Supreme Court has spoken on this issue. The measure is clearly unconstitutional pursuant to Planned Parenthood v. Casey–the U.S. Supreme Court’s 1992 decision mostly reaffirming the basic abortion rights ruling in 1973, Roe v. Wade. “The states,” the Oklahoma court added, “are duty bound to follow [the Supreme Court’s] interpretation of the law.”

In July, the sponsors of the “Personhood Amendment” in Oklahoma asked the U.S. Supreme Court to review their state court ruling against “Initiative 395.” The challenge is primarily an attempt to gain a right to put that measure on the ballot, but the legal documents are framed in a way that the lawyers hope will persuade the Justices to reconsider the Casey decision. The sponsors argued that defining “person” as their measure does would not be unconstitutional.

The prospects of that challenge succeeding seem slim at best. The Casey decision was a 5-4 ruling, and of those nine justices, six have since left the court or died–four from the majority, and two from the dissent.

But the fact that Justice Anthony M. Kennedy remains the only member of that majority still serving on the court may be crucial: he was one of three justices who together fashioned the majority ruling, and he has shown no sign of retreating from its basic conclusion.

It appears that, if he has not changed his mind, he almost certainly would be able to pick up four votes of justices who have joined the court since Casey: Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. The two dissenters in Casey still on the Court–Justices Antonin Scalia and Clarence Thomas–might well pick up the support of Chief Justice John G. Roberts Jr., and Samuel A. Alito Jr., but that, of course, would not be enough.

It would take the votes of only four justices to agree to review the Oklahoma decision on the “Personhood Amendment,” but it is doubtful that four would do so unless there were some reasonable prospect of being able to gather a majority for a final ruling.

The outlook, then, is that the only chance for a “Personhood Amendment” to become a reality is for a proposed “Human Life Amendment” to be added to the U.S. Constitution first. It is doubtful that 38 states would ratify such a change, even if it did emerge from Congress.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

Recent Constitution Daily Stories

Constitution gets just one big shout-out at GOP conventionCampaign speeches that rocked political conventions
An 1871 Supreme Court decision’s role in the epic Apple v. Samsung lawsuit

Condoleezza Rice

Sarah Palin, the 2008 vice presidential GOP nominee, defended Rice on Fox News, about an hour after Drudge said the Rice was the front runner as the potential nominee as vice president.

“I would certainly prefer a presidential and vice presidential candidate who had that respect for all innocent precious purposeful human life,” Palin said. “We need to remember, though, that it’s not the vice president that would legislate abortion and that would be Congress’s role, and we’ll keep that in mind.”

By Friday, a lot of catcalls were coming on the Internet about Rice’s alleged pro-choice stance and Romney’s long-time insistence that he’d only have a pro-life running mate.

The pro-life Susan B. Anthony List issued a statement condemning Rice as a potential running mate.

“Former Secretary Rice’s position on the sanctity of human life makes her an unqualified candidate for Governor Romney to choose as a running mate,” the group said.

In a 2008 interview with CBS’s Katie Couric, Rice gave a long answer when asked if she was pro-choice.

“I consider myself like many Americans on this issue. I really respect people who are on different sides of this divide. This is a tough moral issue. I myself am someone who believes strongly in parental notification, I am against late-term abortion, which I think is really very cruel.  I have not wanted to see the law changed because it’s an area that I worry about the government being involved in,” she said.

“But I am like most Americans. I think abortion is a terrible thing. I think it is hard on the woman. I don’t think people do it lightly. And I really hope there will be fewer and fewer.”

The conservative Washington Times said a Romney choice of Rice would be a “flip flop” on abortion.

In a Washington Post opinion piece, Jonathan Bernstein offers a simple argument.

“Rice is pro-choice, and so she’s not eligible for the Republican presidential ticket,” he says.  “A Republican Party that would accept a pro-choice candidate on the ticket would be a very different Republican Party from what we’ve seen in a long, long time.”

Related Constitution Daily Stories

Condoleezza Rice’s remarks show immigration drift from Mitt
House may treat some reporters as spies
Penn State’s civil liability may be tied to Supreme Court precedents

News headlines, politicians, and hot-button issues come and go, but one 225-year-old document continues to emerge in our conversations about our nation’s most important questions and challenges: the Constitution. The Constitution is a big buzzword for Election 2012, and more than ever, citizens, pundits, and politicians are turning to the Constitution for answers–and sometimes ammunition, as they try to prove the Constitution is on

Here’s a brief look at the top constitutional news stories and commentaries from this week.

The Constitution and… Personhood

On Monday, the Oklahoma Supreme Court unanimously ruled that a proposed amendment to the state constitution, which would define a fertilized egg as a person, is unconstitutional.

The Constitution and… Tea Party Protesters

This week the Constitutional Accountability Center, a progressive think tank, released a video featuring on-the-spot interviews with people who had gathered at the Supreme Court building to protest the Affordable Care Act. The results were less than flattering for the interviewees, many of whom expressed a lack of knowledge or a misunderstanding of fundamental aspects of the Constitution (such as believing the articles, which made up the original document, were “added later”). Although this video does not seem to be objective or a representative sample, it certainly serves as an example of the worrying decline in civic education and knowledge.

The Constitution and… Partisanship

Political scientists Thomas E. Mann and Norman J. Ornstein have released a new book, It’s Even Worse than It Looks: How the American Constitutional System Collided with the New Politics of Extremism. The book warns against politicians who prioritize political gains over careful legislating and good governance, and offers specific criticism of the Republican Party.

Constitution Daily offered several commentaries on this topic this week. Read the op-ed by Amy Gutmann and Dennis Thompson, who appeared at the National Constitution Center this week, and this post on civility. Plus, check out the book reviews at the Washington Post.

But wait, there’s more

Check out the curated links to news and commentary on constitutional issues around the web at Delicious.com or on the sidebar of Constitution Daily. (Note: Links are not endorsements.)

Join the conversation! Catch up on this week’s news, subscribe to the Constitution Daily RSS, or sign up for the email newsletter.

Holly Munson is a programs coordinator at the National Constitution Center and the assistant editor of Constitution Daily.

Even the public release of his official papers last month by the Library of Congress may stimulate a new mystery. Just what, exactly, is in the collection, and what will it tell about Byron White’s influence behind the scenes for some of the Court’s most tumultuous decisions?

Although the Library announced that the collection includes “183,500 items in 858 boxes,” White’s biographer, University of Chicago law professor Dennis Hutchinson (a former White law clerk), said a few years ago that White had “destroyed all his working papers,” adding that “White’s donation [of his papers] will turn out to be very slender when opened to the public.”

Hutchinson also said that it was a basic part of White’s personality “to be modest in a belligerent fashion; he doesn’t believe in history or in journalism.”

When researchers dive into the White collection at the Library of Congress’s Manuscript Division, they will be able to detect whether White felt any obligation toward history, if not toward journalism, by what he saved, and by the internal exchanges he had with his colleagues.

The dry paper record, of course, will not recreate the public image of the man. He was an imposing figure on the bench–intellectually brilliant, large and muscular as befits a former pro football running back (“Whizzer” is what everybody called him, to his disgust), an ornery questioner of lawyers.

But what was his actual influence? His most famous dissents, no doubt, came in the case of Roe v. Wade in 1973, establishing a woman’s constitutional right to abortion, and in the case of Miranda v. Arizona in 1966, requiring police to warn suspects taken into custody of their legal rights before questioning could begin. Since then, the Court has retreated only a bit from its commitment to the basic principle of Roe v. Wade, and it has turned the Miranda decision into an even stronger precedent by making it a binding constitutional mandate instead of simply a directive to lower courts through its supervisory powers.

Less well-known is White’s continuing (and continually losing) battle against the Court’s embrace of what lawyers and judges call “substantive due process.” In layman’s terms, that phrase means that the government must respect the fundamental civil rights of all persons, even if a specific right is not mentioned directly in the Constitution–as, for example, the right to an abortion. “Substantive due process” was the source of many modern civil rights rulings by the Court, over White’s relentless objection–beginning with his very first dissent as a Justice, in Robinson v. California in 1962. He complained bitterly of “judge-made constitutional law.”

Justice White’s most famous opinion for the Court–and it has since been explicitly overruled by the Supreme Court–came in the 1986 decision in Bowers v. Hardwick. That ruling refused to recognize a constitutional right of privacy for homosexual conduct between consenting adults in private. In 2003, a year after White’s death, the Court cast that ruling aside in Lawrence v. Texas, creating just such a constitutional right.

He had joined the Court eight years after the decision in Brown v. Board of Education, mandating an end to racial segregation in public schools. White joined in almost all expansions of that decision, including providing support for affirmative action in college admissions, in the case of Regents of the University of California v. Bakke in 1978.

White’s vote, however, was not always available to support civil rights claims. He dissented in a 1976 case, Runyon v. McCrary, declaring that federal law bars race discrimination in admissions to private schools. He contended that the law involved only applied to officially required segregation.

If he did not destroy all the papers dealing with all of those high-profile cases, researchers will be able to reconstruct how other Justices reacted to White’s drafts, and his influence. The papers, by the way, have just become publicly available–but only to serious researchers–because White had specified that the collection be kept private until ten years after his death. He died on April 15, 2002.

To use the papers, located in the Library’s Manuscript Division Reading Room, scholars and other researchers simply need to get a reader registration card, available free from the Library in Washington.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

Suffragists General Rosalie Jones, Jessie Stubbs, and Colonel Ida Craft. Photo courtesy Library of Congress.

In February 1980, President Jimmy Carter declared the week of March 8 to be National Women’s History Week. By Presidential Proclamation, Carter called on Americans to commemorate the unsung contributions of American women of years past. Carter said, “I urge libraries, schools, and community organizations to focus their observances on the leaders who struggled for equality–Susan B. Anthony, Sojourner Truth, Lucy Stone, Lucretia Mott, Elizabeth Cady Stanton, Harriet Tubman, and Alice Paul. Understanding the true history of our country will help us to comprehend the need for full equality under the law for all our people.”

Seven years later, following widespread grassroots organizing and a national lobbying effort, Congress announced that March would forever be celebrated as Women’s History Month.

Today marks the 25^th anniversary of the start of the very first National Women’s History Month. The theme for this year’s celebration? Women’s education–women’s empowerment.

Over the past month, issues of women’s health and autonomy have been splashed across the front page of every major news publication in the United States. Women (and men) around the country expressed outrage as the Virginia legislature debated a bill requiring women to undergo an invasive ultrasound before receiving an abortion. The bill was ultimately approved the state Senate, minus the intrusive “transvaginal ultrasound”; the new version requires doctors to perform an external ultrasound and to simply offer to perform the more invasive procedure. Seven other states require giving women an ultrasound before an abortion. (See our other post today about the constitutionality of such procedures.)

Just yesterday, Rush Limbaugh made headlines when he condemned Georgetown Law student Sandra Fluke, who testified before a Democratic Congressional Hearing about the Obama administration’s contraception policy. Said Limbaugh, “What does it say about the college co-ed Susan Fluke, who goes before a congressional committee and essentially says she must be paid to have sex–what does that make her? It makes her a slut, right? It makes her a prostitute.”

It’s been a big month for gender politics. But of course, the politicization of issues of women’s equality and autonomy is nothing new.

In the mid-1960s, when segregationist Democratic Congressman Howard Smith suggested that sex be added to the language of the 1964 Civil Rights Act, many suspected that he did so out of the belief that Democrats would never vote for a bill to protect equality of the sexes. As Alabama Congressman Carl Elliott would later declare, “Smith didn’t give a damn about women’s rights, black rights, equality. He was trying to knock off votes either then or down the line because there was always a hard core of men who didn’t favor women’s rights.”

And in 1872, addressing the refusal of American politicians to support women’s suffrage, Susan B. Anthony proclaimed, “No self-respecting woman should wish or work for the success of a party that ignores her sex.”

Women’s History Month offers us the opportunity to draw lessons from the past. It allows us to reflect back on and honor the hard work of those that have come before, and then to make the critical connections to the world today.

As Thomas Jefferson once wrote of the role of education in creating active citizens, “history, by appraising them of the past, will enable them to judge of the future; it will avail them of the experience of other times and other nations; it will qualify them as judges of the actions and designs of men; it will enable them to know ambition under every disguise it may assume; and knowing it, to defeat its views.”

Let’s use this month to pause and reflect on the long fight for women’s equality and autonomy in the United States–and to think about how we might draw lessons from these efforts as we move forward.

Abigail Perkiss is an assistant professor of history at Kean University in Union, New Jersey and a fellow at the Kean University Center for History, Politics and Policy.

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today’s topic: the constitutional protection of patients’ privacy.

The statement at issue:

“Mandating an invasive procedure in order to give informed consent is not a proper role for the state. No person should be directed to undergo an invasive procedure by the state, without their consent, as a precondition to another medical procedure.”

-Virginia Governor Robert McDonnell, in a statement February 22, explaining why he was returning to the legislature for modification a pending bill, SB 484, that would require a doctor to perform an ultrasound prior to an abortion being performed.

We checked the Constitution, and…

As long ago as the late 19th Century, the Supreme Court began recognizing that, in American law, it would be an illegal assault to require an individual to undergo a medical procedure without that person’s consent. At the time, that principle was recognized as a part of what is called “common law.” Over time, that idea would become a part of the Supreme Court’s recognition of a constitutional right of privacy, protecting one’s bodily integrity. Virginia Governor McDonnell’s statement about an invasive ultrasound procedure fit within that legal tradition.

The Supreme Court’s first significant foray into this area came in a ruling in May 1891, in the case of Union Pacific Railway Co. v. Botsford. The case involved Clara L. Botsford, who had taken a trip in a railroad sleeping car. The berth above came unlatched, and fell on her head, causing a concussion and injuring her spinal cord. After she sued the railroad for damages, the railroad demanded that she undergo a physical exam in order to determine the extent of her injuries. A judge refused to order the exam, the case went to trial, and Botsford won a verdict of $10,000. The railroad took the case to the Supreme Court.

Agreeing that the judge lacked the authority to compel the exam, the Court said: “No right is more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law…To compel any one, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass…”

When that principle became a part of constitutional law, it slowly expanded into a more general right of privacy, beginning in the 1920s and continuing even now. In time, the right was found to exist under the First Amendment, the Fourth Amendment, the Fifth Amendment, even the Ninth Amendment on unenumerated rights, and, when state laws were involved, the Fourteenth Amendment. This has been a controversial process, with critics suggesting that Justices often did little more than write their own value preferences into the word “privacy.”

But that process has been most controversial when it returned to its origins in the Botsford decision–that is, privacy as a shield for “bodily integrity.” In that realm, courts have struggled to determine when the right can be restricted, based upon “clear and unquestionable authority of law,” in the phrase used by the Court in Botsford.

Of course, the most controversial recognition of the right in this context came in the Court’s 1973 decision in Roe v. Wade, finding that a woman had a constitutional right of privacy that included the right to an abortion, at least in the early stages of pregnancy. (Not by coincidence, the Court there began its review of the history of privacy rights with the Botsford decision.)

With the Roe decision remaining largely intact, the movement to restrict the abortion right has turned increasingly to what are called “informed consent” laws. There is no real doubt that, at least as a basic legal proposition, a state in regulating licensed doctors can require that patients be told of the consequences of a medical procedure before they undergo it, so that their consent is founded on understanding of the risks. For patients seeking abortions, the Supreme Court made that authority clear in its 1992 decision in Planned Parenthood v. Casey, even as it reaffirmed the main principle of the Roe decision.

The latest development has come in the campaign in state legislatures to require women contemplating an abortion to have an ultrasound procedure, to show them how their fetus is developing, and, obviously, to get them to reconsider. Seven states now have laws that mandate that an abortion doctor perform an ultrasound on each woman seeking an abortion, and show the image to the patient. One of those, in Texas, recently withstood in a federal appeals court a constitutional challenge by doctors.

Virginia’s initial legislation on this subject this year went further: it required that the ultrasound be performed with a device inserted into the woman’s vagina to get a more accurate image of the fetus, and to capture the sound of the fetal heart beating.

Since the measure as it moved through the legislature did not give the woman the option of refusing this procedure, it was widely denounced as a state-mandated assault. The same kind of protest emerged this week in Alabama, where a similar law was under way in that state’s legislature. The protests succeeded in both states, apparently, as the legislators opted to narrow the ultrasound requirement. No one believes, though, that this is the end of the controversy, or is the final word on the law of privacy.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

This is another in a continuing series of posts in which Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today’s topic: birth control and moral convictions.

The statement at issue:

“Nothing in this title (or any amendment made to this title) shall be construed to require an individual or institutional health care provider, or authorize a health plan to require a provider, to provide, participate in, or refer for a specific item or service contrary to the provider’s religious beliefs and moral convictions.”

-Language proposed by Sen. Roy Blunt, Missouri Republican, in the U.S. Senate on February 9, to amend the Affordable Care Act not only to protect religious institutions whose beliefs are opposed to birth control methods, but also to protect any entity providing health insurance if it is opposed to contraception or any other medical service on personal moral grounds.

We checked the Constitution, and…

From the very founding of the Nation, the Constitution has been understood to protect private religious beliefs from government intrusion. The same is not true for private moral values or convictions. Senator Blunt’s Amendment, which also has some Democratic support, would appear to insulate a wide range of private moral choices about public policy–at least on health care–from government regulation. It thus may be changing the terms of constitutional debate over the government’s powers under the new Affordable Care Act.

Until very recently, that constitutional debate has focused upon the new law’s birth control insurance mandate as it applies to hospitals, colleges and other institutions operated by religious organizations that oppose contraception as a matter of their faith. As Congress moved into the debate more energetically this month, the initial focus was on proposed legislation that would create a broader exemption for those institutions, with the aim of protecting their religious freedom.

Along the way, however, some of the debate was turning to the question of repealing the mandate altogether, or, if that was not legislatively possible, to create a significantly broader exemption. Senator Blunt’s proposal quickly moved to the forefront in this effort.

Throughout his proposed amendment to the health care law, the Blunt measure repeatedly calls for protection–in a single, repeated phrase–for “religious beliefs and moral convictions.” It specifically treats those as embraced within “the rights of conscience.”

It may well be that, for many people, the values that they hold as a matter of “conscience,” and that they expect their Constitution to protect, are not really divided up clearly between religion and morality, or religion and ethics. In their minds, the source of their values may be very mixed between religion and some other social perspective.

But, as a matter of constitutional law, there is a difference, and the Supreme Court has relied upon it repeatedly in judging whether to uphold laws that reflect a particular notion of morality, or immorality. Much of the time, of course, the Court will allow a government at federal, state or local level to enact laws or adopt regulations that seek to promote a particular moral value.

Many criminal laws seek to do so, as do other forms of government regulation–such as laws against teenage drinking or against child marriages–that seek to promote “public health, safety and morals,” in a phrase well known to lawyers and judges as they ponder what government may do in the exercise of its “police powers.”

(“Police,” in this sense, has a much broader meaning than the authority of the local police department or the FBI. It refers to the power of government to keep order in civil society.)

It is not at all unusual for the Supreme Court to declare that moral preferences, based upon private ethical values but not religious belief, cannot be the basis of government policy if the effect or the intent is to seek to impose those preferences upon other parts of society that do not share them.

When the Court outlawed state laws that barred people of different races from marrying, or when it struck down laws that barred unmarried couples from access to birth control methods or devices, it rejected the claims that such laws were justified by perceptions that such marriages or that premarital sex were immoral.

Perhaps the most vivid expression of this constitutional approach–because the decision was and is so controversial in a society still deeply conflicted over homosexuality–was the Court’s 2003 decision in Lawrence v. Texas. That is the ruling that struck down state laws making it a crime for homosexuals to engage privately and by mutual consent in sexual acts.

In a separate opinion that broadly discussed the moral arguments made for such laws, then-Justice Sandra Day O’Connor said that “moral disapproval” of homosexuality “is insufficient to satisfy” even the lowest level of constitutional scrutiny. She added: “We have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.”

It is already clear that women’s rights groups, in particular, are advancing that same argument in response to Senator Blunt’s proposal, on the theory that an employer providing health insurance could refuse to provide this or other forms of health care for women out of the entity’s “moral convictions.”

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

There have long been partisan, political and theological divides on issues involving women’s health, insurance mandates, workplace privacy and contraception. Last week they ran a collision course over the dispute on whether insurance coverage for contraception could be required for female employees at organizations with religious affiliations. Can we talk about contraception? And is this the role of our government?

On Friday, after several days of escalating partisan and ideological rhetoric, the White House announced a new policy largely hailed by Democrats as a compromise but condemned by Republicans as an overhanded infringement on the right of religious institutions and the doctrine they follow. Reasonable minds can passionately disagree, and both sides are quick to claim the basis of their argument lies in the Constitution.

For decades, liberal groups have claimed contraception coverage is an issue of gender equality in employer-provided health care. Conservatives however, consider this a violation of the First Amendment, infringing on their religious liberties.

The First Amendment’s establishment clause “prohibits the federal and state governments from establishing an official religion, or from favoring or disfavoring one view of religion over another.”

The question of mandating coverage for contraception by organizations with religious affiliations certainly pushes buttons on both sides of the issue. But in a time of political gridlock, ballooning deficits and record unemployment, it can hardly be reasoned that Congress and the President arguing over contraception is what our founding fathers had in mind when they adopted the Bill of Rights in 1791.

The First Amendment guarantees us all the freedom to practice any religion we choose and prevents others from denying that basic right. But in the end, isn’t the use of contraceptives one of personal choice, not that of employers or politicians? Maybe the question shouldn’t be can we talk about contraception? But rather, should we? Let us know what you think.

Alison Young is the Vice President of Public Engagement at the National Constitution Center.