By CAROL TOWARNICKY
KNIGHT RIDDER NEWSPAPERS
Tell me again, what's wrong with "judicial activism"?
In recent years, those have become dirty words, with even liberals attacking conservative judges for being too "activist."
But thank goodness that, 40 years ago, the U.S. Supreme Court didn't shrink from what some people call activism when it overturned a Connecticut law that made it a crime for married couples to use contraception -- or for others to help them get it.
In Griswold v. Connecticut, the court said that guarantees inferred, although not precisely stated, in several constitutional amendments make up a "right to privacy," a right to be protected from government interference in intimate decisions.
The right was cited in the Roe v. Wade decision that legalized abortion, of course, but also in a 1971 decision that said contraception is a private matter for unmarried individuals.
The right to privacy also was the basis for a 2003 decision that overturned a Texas law that outlawed gay sex, and it undergirds decisions affirming an individual's right to refuse medical treatment.
What would this country look like without it?
Many extreme conservatives can't wait to find out.
Root of all evil
They have demonized Griswold and the right to privacy as the root of all modern evil.
For example, The American Life League: "In this one decision, the court set the stage for the growth of moral relativism and hedonism in this once great Christian nation."
It's a critically important question right now: Supreme Court nominee John Roberts' past writings suggest he doesn't think there is a right to be let alone by government, referring instead to a "so-called right to privacy."
So let's go back to 1965: The law against birth control seemed idiotic even then.
Justice William O. Douglas wondered if, to enforce it, we would allow the police to search bedrooms for signs of contraceptive use.
Apparently so. Although the two minority justices in Griswold agreed that the Connecticut law was "uncommonly silly," they insisted that it couldn't be overturned.
The Constitution, after all, doesn't mention privacy. It doesn't expressly forbid states to mandate bedroom behavior. Their reasoning sounds an awful lot like the speeches of today's conservatives.
If that side had won, would the state Legislature have pushed through a law allowing couples to decide on their own whether to use birth control? I don't think so, either.
Justice Arthur Goldberg's concurrence put it in plain terms: If the government can interfere in a couple's decision on whether to use contraception, couldn't it also tell couples they had to be sterilized after having two kids?
Fast-forward to 2005. If a Roberts confirmation helps create a Court majority to overturn the right to privacy, what then?
While many states would outlaw abortion, they probably wouldn't pass laws forbidding married couples to use condoms. We hope.
After that, who knows?
Just look around: Even with a right to privacy, some states already are on the attack against emergency contraception (high-dose birth control pills) by protecting pharmacists who refuse to fill prescriptions.
A bill has passed the Wisconsin state house that would prohibit health service workers at the state's 26 colleges from prescribing or even telling women -- even rape victims -- about emergency contraception.
What about gay rights? Would the states that used to have anti-sodomy laws reinstate them? How would they be enforced? (In an eerie echo of Justice Douglas, the 2003 Texas case began when two gay men were arrested by the sheriff while having sex in their own home.)
Expect more Terri Schiavo-type cases as religious lobbies pressure state legislatures. Without a right to privacy, would living wills be respected? Maybe, but maybe not.
Without a right to privacy, the government again would have the keys to your doors, at least figuratively.
Without it, the courts would be paralyzed, unable to stop the state from stepping across your threshold and into your personal decisions.
X Carol Towarnicky is chief editorial writer for the Philadelphia Daily News. Distributed by Knight Ridder/Tribune Information Services.