Questioning Justice Kennedy’s Replacement: Pay Attention Not Just to Roe v. Wade but Also the Right to Privacy and Contraception

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Posted in: Constitutional Law

The media and the public are hyper-focused on the impact of Justice Anthony Kennedy’s retirement on whether Roe v. Wade will be overruled. Many correctly assume the decision is at risk. That seems to me obvious, though the jury is out on whether the newly configured Court would overrule Roe or adopt an interpretation that makes it toothless, thereby letting the states cut the right to abortion down to a nub. A weak right is not terribly different in practice from a nonexistent right. But Roe is a distraction from the larger agenda underlying this fight.

So far, the full agenda has been obscured: what is at stake here is not just abortion but also contraception, sterilization, artificial insemination, and embryonic stem cell research/medication. The goal of the Federalist Society and its allies is not merely to roll back Roe. They do not want the public or senators to debate this, because the optics would shock a majority of Americans, but their hostility is not limited to Roe. They object to its core reasoning. They seek to rid constitutional law of the substantive due process right to privacy, which started with Griswold v. Connecticut, the case that held that there is a federal constitutional right for a married couple to obtain contraception and choose their own personal family-planning path. That’s correct: the constitutional right to birth control is at risk with this next appointment.

This Battle Is Not Just About Abortion by a Long Shot

They wave around Roe partly as a distraction. Yet, it’s the tip of the iceberg of what this next nominee could do to eviscerate privacy rights. If the reasoning of Roe is abandoned, so is the foundation for personal rights to contraception of all varieties, sterilization, artificial insemination, and even stem cell research and medication. The newly configured court could throw all of those issues, and likely the privacy right identified in Lawrence v. Texas, as well, to the states. The states would be free to enact blanket bans with no federal constitutional right as a backstop.

Listen carefully to the rhetoric: Roe is suspect because abortion is “not in the Constitution” and in conflict with an “originalist” interpretation of the Constitution. The underlying theory of Roe is derived from the Griswold right to privacy. Thus, if Roe is overruled due to its reasoning, it will tee up all substantive due process privacy rights for elimination. While the opinion that guts or overrules Roe could focus solely on abortion, its reasoning would plant seeds for the end of the rest of the substantive due process canon.

A Plethora of Catholics

One question needs to be answered about the sitting Supreme Court (including Justice Kennedy) and the short list being considered: it is predominated by Catholics with a certain shared worldview. Why is that? The agenda to roll back not just abortion rights but all privacy rights may provide some insight into why Republicans keep turning to Catholics to fill spots on the Court. The conservative five men on the Court including Kennedy are all Catholic: Justices Alito, Roberts, Thomas, and Gorsuch (though Gorsuch now attends an Episcopalian church). Justice Sotomayor is also Catholic but obviously not cut from the same ideological cloth. Despite the disproportionate representation of Catholics on the Court as compared to the general population, the Federalist Society has delivered to President Trump a Catholic-heavy short list, and Trump reportedly has prioritized three Catholics: Judge Brett Kavanaugh, Amy Coney Barrett, Thomas Hardiman. What is it about the Catholic faith that is so attractive to the battle against substantive due process?

Catholic orthodoxy is opposed to abortion in all of its varieties. It is also opposed to birth control. These beliefs dovetail with the project to eliminate substantive due process. In contrast, evangelicals are diverse on the question of birth control with even the conservative Focus on the Family allowing that there is legitimate debate about the appropriateness of contraception (other than those they say are abortifacients). If you don’t believe in the use of birth control, eliminating substantive due process and Griswold is made easier. The primacy of the pro-life perspective makes a practicing Catholic jurist highly attractive.

Notre Dame and Justice Candidate Views on Abortion and Contraception

An examination of Notre Dame University provides some further insights. At one point, Notre Dame, an alma mater of both Barrett and Hardiman, took the position that providing any contraception to anyone at the university through its health plan violated its faith. Barrett was a professor at the Notre Dame law school as well. This world where no one has access to contraception and abortion comports with the university’s fundamental beliefs.

Not everyone at the university, however, is Catholic, and apparently that led them to soften their position. Since then it did back off, and now permits its health insurance to cover birth control (other than what it says are abortifacients) with a nod toward the diversity of its community. Could this mean that a Catholic jurist would adopt a live-and-let-live-attitude toward birth control and therefore preserve substantive due process? Maybe, but in this political context it seems unlikely. Despite softening its intent to keep all members of its community from birth control, the university and the faith retain the anti-birth control view and, even for nonbelievers at the university, the opposition to abortion radiates far beyond abortion to many forms of birth control. As with Hobby Lobby, the opposition to abortion does not stop at the process but spans contraception as well.

Moreover, Notre Dame like other Catholic universities also imposes content restrictions on its professors, which prohibit the expression or support of any views inconsistent with the Catholic canon, which again, precludes supporting abortion and contraception and in vitro fertilization and sterilization and embryonic stem cell research and medications. Presumably, these views comport with Barrett’s world view given her professorial role. Had she expressed contrary views, she would have been shown the door.

Barrett actually then takes us down another rabbit hole as her Catholicism is practiced through the small group, People of Praise.  According to the New York Times in 2017: “Members of the group swear a lifelong oath of loyalty, called a covenant, to one another, and are assigned and are accountable to a personal adviser, called a ‘head’ for men and a ‘handmaid’ for women. The group teaches that husbands are the heads of their wives and should take authority over the family.

Current and former members say that the heads and handmaids give direction on important decisions, including whom to date or marry, where to live, whether to take a job or buy a home, and how to raise children.”

If this is an accurate description of the group’s beliefs, Senators must ask whether she is capable of independent and neutral decisions. These views are reminiscent of the Quiverfull movement, which I discuss here. While government officials cannot question their right to hold these beliefs, they can question whether such beliefs bring into question the fitness of the person for a judicial appointment.

The bottom line in this day and age is that senators must ask about a candidate’s faith, writings, and views on the right to privacy for the sake of the country. We are consistently told that the need for religious liberty is intense because believers are drenched in their religion and never capable of acting without reference to it. But how does that square with fairness in the law? The rule of law demands rather that a justice set aside her presuppositions and apply the law of the land, regardless of her God.

The public needs to fully understand that we stand on the precipice of a world conceivably without a right to contraception. And please don’t tell me about the overwhelming majority of Americans who use contraception as an antidote to this story line. It’s not. A justice is insulated from such political realities. That is why Trump’s base—a minority of Americans devoted to this issue—are thrilled at the prospect of another Supreme Court appointment and willing to ignore his lies, failures, and faults. This is their one clear path to win this culture war.