Contraception and the Laws Print
By Hadley Arkes   
Tuesday, 28 February 2012

With the storm over Obamacare, we now find an attempt on the part of the administration to make contraception an issue in the presidential campaign. When the controversy emerged, I must admit that I was inclined to assume thoughtlessness as the likely explanation:  that the administration had simply blundered into a quarrel, because people in its inner circle take for granted that everyone shares their own, “sensible” views on contraception. 

What I hadn’t considered seriously enough was that the move to inject this issue was a deliberate move to shift attention away from the economy and paint the Republicans – and the Church – as mad zealots on abortion and contraception. 

When George Stephanopoulos first raised the matter in the Republican debates, Mitt Romney asked why he should be raising such a question when no one was seriously proposing legislation to restrict contraception. And it is strange, a measure of a culture strikingly changed, that it seems to be regarded as unthinkable now that the laws would have anything to do with contraception.  

There seems to be a curious forgetting that in the famous case of Griswold v. Connecticut (1965), the Court focused on a law (essentially unenforced) that barred contraception even to married couples. In his concurring opinion Justice Byron White observed that the Court still left the possibility of the law discouraging “all forms of promiscuous or illicit sexual relationship, be they premarital or extramarital.”   

The Court quickly moved past that barrier, striking down policies that would bar the availability of contraceptives to unmarried people. Still, it did not seem unthinkable that the law could forbid the sale of contraceptives to teenagers, or bar the sale of contraceptives in vending machines in restaurants and gas stations, as fixtures that seem to put an imprimatur of acceptance and encouragement even on casual encounters among strangers.  

And lo and behold: at the end of January, the mayor of Los Angeles signed into law a measure that requires actors in pornographic films to use condoms. The liberals who have been telling us for years that the law may not reach this private matter of contraceptives now tell us that it can mandate their use!

But clearly, the culture has shifted, and it becomes harder for political figures to talk about these things. Tom Stoppard had one of his characters say that, in a certain setting, the moralist is likely to “sound like a crank, haranguing the bus queue with the demented certitude of one possessed of privileged information.”  

Rick Santorum touches the truth of Catholic teaching when he talks about marriage as self-giving, with an openness to new life. But we find that sounding overly precious these days, even to the bulk of Catholics who have incorporated contraception in their lives. 

And yet even the editors of the New York Times have been sobered by the news that more than half of childbirths to American women under thirty have been outside of marriage. The editors have been candid enough to concede that the advent of “the pill” has had no small effect here in furthering that inclination, hardly new, to separate sex from marriage.  

How can we be so unserious about something that cannot be anything other than profoundly serious?

Still, we can expect to see Rick Santorum pilloried on this issue, regardless of whether he wishes to talk about it or not. 

One way or another Santorum may have to suggest to the public a different, more disarming way of talking about the matter. A former student of mine in the Class of ’73 at Amherst was recently visiting at the College his son in the Class of ’13.  The father is no conservative, but even he was taken aback by the bowl of condoms put in a prominent place in the dorm. The Resident Advisor attached a note:  “If we run out, let me know.”   

I gather that even liberal parents do not keep baskets of condoms at home for the kids. At Smith College, a school still confined to women, I was astonished – and jolted – about twenty years ago to go into a Men’s bathroom and find a vending machine for condoms. It was tantamount to a notice announcing that the women on this campus were of course “available,” even for encounters springing up at the moment, when there hadn’t been forethought enough to pick up condoms.  

We will not encounter these scenes at schools like Belmont Abbey or Ave Maria or Wheaton College, with a serious religious character. The differences are plain, and no one thinks them odd or unaccountable.

The liberal parents who find themselves uneasy in these encounters at Amherst or Smith are reflecting, even in a dim way, an understanding of what makes this breezy attitude toward sex so juvenile and unworldly precisely because it treats as so unserious something that cannot be anything other than profoundly serious. 

No doubt, Santorum can suggest, it is hard to talk about these things, but we may ask only this: Do you understand that those of us who are uneasy about this transformation of the culture in our own lifetimes are reflecting an understanding that has not entirely fled from you?   The fact that people don’t wish to talk about these matters is no proof that the subject itself is unimportant. 

It may simply mean that we need to find a way of talking again, among ourselves, even in public, about a matter that will never cease to be important.


Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is
 Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law.

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