Amy Coney Barrett’s Confirmation Could Cause a ‘Right to Privacy’ Domino Effect
If there’s no right to privacy, a whole line of rulings goes out the window
If there is one stunningly clear takeaway from the hearings to confirm Amy Coney Barrett to the Supreme Court, it’s this: Enjoy your rights to bodily sovereignty and sexual privacy while you have them. Because if Barrett is confirmed to the Supreme Court, they may not last long.
Supreme Court confirmation hearings are often farcical displays. A nominee, chosen from among the finest legal minds in the land and auditioning for a job to write legal opinions that have the power to profoundly shape Americans’ lives, sits before the Senate Judiciary Committee and purports to have few opinions at all on the cases and issues that are the most controversial and oft-discussed inside the legal academy and out of it. But Barrett brings the dissembling and disingenuous refusal to answer direct questions to a new level. No Supreme Court nominee in memory has been so evasive. And where Barrett hedges the most are the biggest tells: on the Affordable Care Act, on presidential powers in elections, and on reproductive rights and sexual privacy.
Barrett was hand-picked by conservative organizations because, among other things, she is against the right to abortion. She has said so herself, joining the “pro-life” faculty group at Notre Dame Law School, and signing an ad that said, “It’s time to put an end to the barbaric legacy of Roe v. Wade and restore laws that protect the lives of unborn children.” That isn’t a statement of a personal view; that’s a demand for the courts to act. And if confirmed, Barrett will be one of the nine people in the country with the power to do what the letter she signed demands.
She has already shown us her intentions. President Donald Trump believes her. Senate Republicans believe her. We should believe her, too.
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Discerning what Barrett will do if she is elevated to the court is made a little more complicated by the fact that Barrett suddenly refuses to speak about her views at all. Neither she nor the president nor her Republican proponents in the Senate want her to be too transparent on the abortion question. Roe v. Wade is, after all, the law of the land, and most Americans do not want it overturned. The election concludes in just 20 days — a clear argument against holding these hearings now, but one Republicans have disregarded. If Barrett answers honestly in the confirmation hearings — if she says that she believes Roe was wrongly decided — then Republicans are going to face a lot of demands to vote no on her confirmation, and have a lot of angry voters on their hands.
And so instead, we are treated to this joke of a hearing, where we all pretend that Barrett doesn’t believe exactly what she has repeatedly said she believes.
Barrett is not the first Supreme Court nominee to dodge the abortion question. But she is even less committal than most. Ruth Bader Ginsburg answered clearly in her confirmation hearings that she believes Roe was rightly decided; Sonia Sotomayor agreed that Roe was settled law. Barrett won’t do that.
To add insult to injury, Senate Republicans (and a few Democrats) have spent precious minutes fawning over Barrett’s family and her ability to have both a career and a large family, something men have done for centuries without much comment. Over and over, conservative senators called Barrett a role model or an inspiration for girls and women (as if boys and men can’t look up to a woman). There is something particularly pernicious about demanding that women laud Barrett, a woman more in the mold of anti-feminist Phyllis Schlafly than women’s rights trailblazer Ruth Bader Ginsburg, as an icon of female accomplishment and professional possibility. It’s no coincidence that in the wake of Roe v. Wade and earlier cases establishing a right to contraception access, American women surged toward greater independence, going to college and into the workforce in record numbers. The lessons of safe abortion and readily available contraception reverberate around the world: When women can plan their families, women thrive. We live longer. We are far less likely to die in childbirth, and our children are less likely to die, too. We are more likely to go to school; so are our daughters. We are less likely to be trapped in abusive relationships, and less likely to be stuck in poverty. Our families are more prosperous. Our communities are healthier.
If Griswold goes–and Griswold is at risk the day Roe goes–the rest of the line of privacy rights jurisprudence could go with it.
Feminists have fought long and hard for these rights — including for the right of women to choose to have large families, as Barrett has, even if they are not worth nearly $2.6 million, as Barrett is, but are instead struggling to keep their children safe and secure. Republicans and conservatives like Barrett have cheered on large (white) families, while refusing to do much of anything to help out when families struggle. Feminists have tried to clear the way for women to make their own reproductive choices — to have children or not, without state interference or professional discrimination. Barrett has benefited from that feminist work, which is why she is now in a position to undermine it. Being told that feminists and women generally should appreciate that and admire her is a hard pill to swallow.
Barrett won’t be the first anti-abortion judge on the court (although if Republicans are looking for firsts, she would be the first staunchly anti-abortion woman). But her hostility to reproductive rights extends far beyond Roe and the right to abortion. In the hearings, Barrett couldn’t answer whether she believed Griswold v. Connecticut, the case that extended contraception access to married women, was rightly decided. We know that her mentor, Antonin Scalia, believed Griswold was indeed decided wrongly, and given the chance, would likely have overturned it. We know Barrett has said that, while she is her own woman, she believes Scalia got most of his decisions right. While Roe gets a lot of press, Griswold is at the heart of many of the court’s most significant decisions — it was the first case that fully laid out the right to sexual privacy, which has been understood since then to include the right of any woman to use contraception and have an abortion; the right of people of the same sex to have consensual intercourse; and the right of individuals to marry someone of the same sex. If Griswold goes — and Griswold is at risk the day Roe goes — the rest of the line of privacy rights jurisprudence could go with it.
Griswold, Barrett said in the hearings, is not under threat; she said it was “unthinkable” that anyone would challenge it. And she’s right that it’s been a while since states have criminalized contraception. But they haven’t done that because abortion rights and Roe have taken the bulk of the focus of the anti-abortion movement. It’s worth noting, though, that most mainstream anti-abortion groups do not support contraception access; some are publicly opposed to it, and some falsely characterize common contraceptive methods as “abortifacients.” These same groups have pushed legislation that establishes personhood at the moment of conception, something at odds with the medical definition of pregnancy, but that could outlaw several of the most common and effective forms of birth control and even criminalize in-vitro fertilization. That’s all very far from an academic exercise. It is not “unthinkable.” It is, in fact, part of a well-thought-out plan. If Roe is overturned, there’s little to stop conservative groups from pressing forward and coming for contraception next — or marriage equality, or the right to have consensual intercourse with an adult of the same sex.
The message from Barrett’s confirmation hearing was clear: This is all on the line. She does not believe there is a constitutional right to sexual privacy. The question is whether the weight of the precedent — dozens of cases over five decades, millions of Americans who rely on what they believe to be their right to use contraception, end unwanted or dangerous pregnancies, have sex, and get married — will be enough to tip Barrett’s originalist scales toward upholding the law as it stands.
Barrett showed us who she is: a woman who will not affirm even the least contested rights to sexual privacy and family planning. Which means even the least contested of those rights could be up for grabs with Barrett on the Supreme Court.