If Republican senators succeed in pushing through Judge Amy Coney Barrett’s Supreme Court nomination on Monday, your reproductive freedom and personal decision-making will be in the crosshairs of six ultraconservative justices.
Abortion access is sure to be severely restricted, but Barrett is likely aiming even more broadly at the rights that allow Americans to decide how to structure one’s life and family. These rights currently are protected by the Constitution’s right to privacy, including the right to be sexual with and maybe even marry a person of your choosing; to use contraception, have an abortion, or use in vitro fertilization technologies; to make medical decisions, including end-of-life care; and more.
Barrett refused to answer even the simplest of questions and demurred on her opinion of Roe v. Wade—not even divulging her beliefs about contraceptive access or in vitro fertilization. Nonetheless, her deep opposition to abortion is well documented and her opposition to birth control and LGBTQ rights not hard to discern.
Let’s be clear that abortion rights were imperiled long before any Trump appointments to the Supreme Court. In 1992’s Planned Parenthood v. Casey, the case Kathryn argued, the Supreme Court punched a hole in the dam of Roe v. Wade while purporting to preserve abortion rights. The more relaxed standard that first female Justice Sandra Day O’Connor and her two colleagues launched in Casey allows abortion restrictions so long as they do not rise to the level of being an “undue burden.” For almost 20 years since, abortion restrictions have gushed forth as conservative justices have interpreted it to allow a range of abortion restrictions, all of which fall unevenly and inequitably on women of color and many of which put abortion out of reach for many women.
Live in a rural state? You may have to travel to a clinic hundreds of miles away, listen to your doctor recite state-mandated anti-abortion drivel, and then return again a few days later for your procedure. Is your health insurance provided by Medicaid? Chances are there’s no coverage unless you choose to give birth. Are you under 18 and pregnant? You can have a cesarean section and give a baby up for adoption without your parents knowing, but you’ll likely need your parent’s consent for an abortion. Are you all of the above? Best of luck to you.
But, make no mistake, Barrett as the sixth vote on an already conservatively skewed Supreme Court welcomes these blockages—and more. During her debut White House superspreader event earlier this month, she announced fealty to her mentor Justice Antonin Scalia—“his judicial philosophy is mine”—but then proclaimed her independence during Senate hearings.
Like Scalia, Barrett is a textualist, meaning she will interpret statutes solely on the language within them, rather than the context in which they were passed. On matters of constitutional law, she is an originalist, and thus will look only to what the Framers meant as they drafted our Constitution way back in 1787 or at the time of adopting its amendments. Doubtful that the Founding Fathers thought much about the birth control pill, the morning-after pill, or medication abortion, none of which had been invented yet.
Scalia also was explicit in his view that the liberty clause found in the 14th Amendment only affords procedural protections, like the right to a hearing, and not substantive rights, like the right to privacy. These substantive rights, however, are the foundation of constitutional protections for many of the rights that Americans have relied upon over the last several decades.
Combine this rejection of substantive rights with Barrett’s belief that the court’s precedent is malleable, add a dash of her dismissiveness toward Roe and Casey as “superprecedents,” and it’s a recipe for disaster. With Barrett on board, five ultraconservative justices could easily opt to revisit and flambé not just Roe and Casey, but seminal precedent such as Griswold v. Connecticut, which legalized contraception; Lawrence v. Texas, which decriminalized homosexuality; and Obergefell v. Hodges, which legalized same-sex marriage. All could be toast. During her hearing, Barrett artfully dodged answering whether the right to use contraception is a superprecedent, claiming that the issue will not likely come before the court. Yet she must know that several state legislatures, in their zeal to ban abortions, already have introduced legislation that could ban the birth control pill and the IUD, methods that abortion opponents intentionally misconstrue as being abortifacients.
It has been obvious for some time now that those who care about reproductive freedom can no longer depend on the federal courts to preserve our vital liberties. Rather, voters will need to fill Congress, state legislatures, and state courts with people who will prioritize gender and racial equity for all.