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Republican AG candidates criticize 1965 ruling against contraceptive ban

Craig Mauger
The Detroit News

Lansing — Two of the three Michigan Republicans who hope to be their party's nominee for attorney general said Monday they oppose bans on contraceptives after publicly criticizing a 1965 U.S. Supreme Court ruling on the subject.

During a Friday debate in Alpena, state Rep. Ryan Berman, lawyer Matt DePerno and former Michigan House Speaker Tom Leonard were asked about their thoughts on the high court's Griswold v. Connecticut decision, in which the justices in a 7-2 decision overturned a ban on contraceptives by citing a right to marital privacy.

All three Republicans spoke critically of the decision, saying they support states' rights and are against judicial overreach. Michigan's Democratic Attorney General Dana Nessel blasted their comments on social media as "terrifying."

Republican attorney general candidates, from left, Matt DePerno, Tom Leonard and Ryan Berman.

"Each of the radical Republicans running for Michigan AG want to overturn the right for married couples to use contraception without being prosecuted," Nessel tweeted.

During the debate, the Republicans appeared to be caught off guard by the question about the Griswold ruling, which came from someone in the crowd. In legal circles, the Griswold ruling's creation of a right to privacy is viewed as paving the way for the Supreme Court's 1973 Roe v. Wade decision that legalized abortion nationwide.

Leonard of DeWitt asked for a reminder about what the decision covered.

"This case much like Roe v. Wade, I believe, was wrongly decided because it was an issue that trampled upon states' rights," he said. "It was an issue that should have been left up to the states."

Some analysts argue the U.S. Supreme Court will soon overturn the Roe ruling because of its 6-3 majority of conservative justices. If the high court does so, it could restore in Michigan a 1931 state law that's still on the books and makes it a felony to administer any medicine or substance or employ "any instrument" with the intent to "procure" a miscarriage.

During the debate, Berman of Commerce Township said he wasn't familiar with Griswold.

"I would have to look more into it and the reasoning behind it," he said during the debate. "But I am all about states' rights and limiting federal ... judicial activism."

In the Griswold ruling, the court said Connecticut's ban on contraceptives "concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees."

"Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?," the court's ruling said. "The very idea is repulsive to the notions of privacy surrounding the marriage relationship."

In a statement Monday, Leonard said states shouldn't ban contraceptives. His problem with the ruling, he said, was how the Supreme Court reached its decision. The justices argued the right to privacy wasn't in the text of the Constitution but emanated from certain guarantees in the Bill of Rights. 

"Our rights should be grounded in the Constitution's text and tradition, not a judge's feelings," Leonard said. "That's just common sense to everyone except fringe culture war activists like Dana Nessel."

Berman noted that he said during the debate, he would have to look into the decision more closely. He doesn't oppose contraception, he added. Nessel is trying to "drum up something from nothing," he said.

During the Friday debate, DePerno, who's been endorsed by former President Donald Trump, emphasized the need to support states' rights.

"We need to stand at our borders," he said. "When the feds come and try to take our rights, we need to stand as citizens in Michigan and hold the line and protect states' rights."

On Monday, his campaign manager, Tyson Shepard, said he was glad Nessel was watching the debate to find out "what it means to be attorney general Friday night.

"After three years of defending unconstitutional vaccine and mask mandates, Dana Nessel was taught a lesson of what standing up for states' rights means," Shepard added. "Defending the Constitution and states' rights from federal overreach is a critical responsibility of the AG's office and duty that she has failed at miserably."

Republican Party delegates will endorse a candidate for attorney general at a convention on April 23. The GOP nominee will face Nessel in November.