The Daily Caller

The Daily Caller
Debate moderators Diane Sawyer and George Stephanopoulos speak before the Republican presidential candidates debate at Drake University in Des Moines, Iowa, December 10, 2011. REUTERS/Jim Young (UNITED STATES  - Tags: ELECTIONS POLITICS)

On impossible rhetorical question about contraceptives, liberal media side with Stephanopoulos over Romney

After a New Hampshire GOP primary debate that saw an impatient audience literally “boo” co-moderator George Stephanopoulos for a series of unrelenting questions to Mitt Romney about a hypothetical ban on contraceptives, liberal media elites leapt to the ABC News commentator’s defense.

Stephanopoulos, a former senior advisor in the administration of Democratic President Bill Clinton, asked Romney if he believes “states have the right to ban contraception — or is that trumped by a constitutional right to privacy?”

Romney, the former Massachusetts governor, responded by questioning Stephanopoulos’ logic and his choice to spend debate time on such an unlikely scenario.

“You’re asking — given the fact that there’s no state that wants to do so, and I don’t know of any candidate that wants to do so — you’re asking could it constitutionally be done?” Romney asked, with a hint of incredulity.

The Associated Press, the Los Angeles Times, Mediaite and Kaiser Health News have all sided with Stephanopoulos on the legitimacy of the impossible hypothetical.

The AP reported that Romney “tried to avoid” answering the question. The LA Times reported that Romney “grows foggy on contraception.” Kaiser ran a headline claiming “Romney gets testy about contraception hypothetical at GOP debate.” Mediaite reported that Romney “stumbled badly” on the question.

None of the reporters who made those claims attribute their characterizations to constitutional lawyers or other academics.

In a statement, Committee For Justice executive director and constitutional lawyer Curt Levey said Stephanopoulos’s question appeared to have been designed as a gotcha.

“Knowing that Romney and most Americans would not support a government ban on contraceptives, Stephanopoulos’s apparent goal was to trip up Romney, who believes that Roe v. Wade — in which the Supreme Court relied on a supposed constitutional right to privacy — was wrongly decided,” Levey said.

“For non-lawyers, a general constitutional right to privacy was created by the Court in its 1965 Griswold v. Connecticut decision, which struck down an unenforced state law prohibiting contraception,” Levey added.

“Answering this question is perilous only if one skips over the distinction between the legal issue — was Griswold rightly decided as a matter of constitutional interpretation — and the political question: Should states be prohibited from banning contraception as a matter of federal policy, presumably expressed through a federal statute or constitutional amendment.”

Levey argues that Stephanopoulos may have been “trying to blur this distinction” or “perhaps, like most of the ‘living Constitution’ crowd, he does not fully comprehend the distinction.”

Follow Matthew on Twitter