In the United States, we take many of our rights for granted. One of those rights is the right to use safe, reliable birth control. Fortunately, most women in the U.S. will never have to confront the terrible choice of whether or not to terminate a pregnancy – in large part because we have access to contraception. But it’s been only since 1972 that this access was recognized as a constitutionally guaranteed right. This right, which affects the life, liberty, health and economic prosperity of all women, faces an existential threat of rescission if Brett Kavanaugh is elevated to the Supreme Court.
Brett Kavanaugh is not the worst choice on the list of judges from whom President Trump has chosen Supreme Court nominees. For this reason, my initial reaction to Kavanaugh’s nomination was: “It could be worse, so don’t fight it.” But that reaction is wrong.
In fact, every judge nominated from this list should be rejected by a majority of senators, because every judge on this list was chosen by the ultra-conservative Heritage Foundation and Federalist Society for his or her judicial track record in favor of corporations over individual consumers and workers, in opposition to environmental regulations and in support of rolling back civil rights, voting rights and every right that is based on the Constitution’s implied right to privacy – including the right to access safe, reliable birth control as a constitutional right of every woman in this nation.
Sen. Susan Collins betrays every woman in Maine by accepting Kavanaugh’s assertion that he believes that legal abortion is settled law, when overwhelming evidence points to the contrary. There is absolutely no question that a Justice Kavanaugh would vote to overturn Roe v. Wade, because he would not be on “the list” if that were not the case. But abortion would not be the only right that would be nullified. The constitutional right to birth control would also be lost, because that right has the same foundation as the right to abortion – the implied, or “penumbra,” constitutional right to privacy.
There is no express right to privacy in the U.S. Constitution. The word “privacy” is not in the Bill of Rights. However, more than 50 years ago, in Griswold v. Connecticut, the Supreme Court determined (in a 7-2 decision) that the Constitution protects a “zone of privacy” that is inherent in the First, Third, Fourth and Fifth amendments to the Bill of Rights, as well as the due process clause of the 14th Amendment, which protects liberties that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”
This right to privacy was referred to as a penumbra right and was the basis for recognizing that married couples had a constitutional right to use contraception – which had been a crime in Connecticut before Griswold was decided, in 1965. In 1972, in Eisenstadt v. Baird, the court recognized that unmarried people were also constitutionally guaranteed this same right. In 1973, the court ruled in Roe v. Wade that the penumbra right to privacy in the 14th Amendment’s due process clause extended to a woman’s decision to have an abortion.
When judges like Brett Kavanaugh call themselves “textualists” and “originalists,” they’re professing to support the view that our Constitution should be applied as written, consistent with the intent of those who enacted it. But they’re really saying that they reject the principle that there is any penumbra right to privacy guaranteed by the U.S. Constitution. So-called textualists support overturning all decisions that are based on an inherent constitutional right to privacy.
Prior decisions written by Kavanaugh – including his dissent in Priests for Life v. HHS, a lawsuit challenging the Affordable Care Act contraceptive coverage mandate – imply that he does not agree that birth control is a right that the Constitution guarantees to the women in this nation. In fact, during his confirmation hearings, Kavanaugh referred to “abortion-inducing drugs” when explaining his opinion in Priests for Life – a characterization that is contrary to science and fact, but that reveals bias against prior precedents that recognize a constitutional right to contraception.
It’s obvious to me that Brett Kavanaugh is committed to overturning all rights with a foundation in the constitutional right to privacy, including the constitutional guarantee to use contraception.
This is not a partisan issue, but an issue of equality that requires all citizens to defend privacy as a constitutionally guaranteed right. Please tell Sen. Collins to vote “no” to any and every judge from the Heritage Foundation-Federalist Society list – including Brett Kavanaugh.
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