I missed this article from ten days ago, but it seems misguided enough to deserve comment. The thesis is that Justice Barrett threatens the right to contraception that the Supreme Court invented in Griswold v. Connecticut — a line of argument I’ve already criticized in this space.
Julie Rovner writes: “[F]rom what Barrett has said and written about the Constitution, Northup says, ‘it’s clear she doesn’t believe it protects the right to personal liberty.’” Northup is the head of the Center for Reproductive Rights, which of course has an interest in freaking people out about the possibility of losing access to contraception. Rovner does not explain what Barrett has “said and written about the Constitution” that backs Northup’s assessment, or quote anyone who disagrees. Obviously the Constitution protects personal liberty in many, many ways, and there is no reason at all to doubt that Justice Barrett grasps this point. Presumably what Northup means is that Barrett believes the Constitution places limits on a judge’s ability to protect liberty, for example by requiring them to cite a constitutional provision that is clearly on point.
Next Rovner brings up, as though it were a real possibility, the prospect the Court will not only allow legislatures to prohibit abortion by overturning Roe but effectively prohibit abortion itself. She writes that “the court could go a step further and recognize ‘fetal personhood’ — the idea that a fetus is a person with full constitutional rights from the moment of fertilization. That would create a constitutional bar to abortion, among other things, meaning even the most liberal states could not allow the procedure.” If Barrett adopts this position, she would be the first Supreme Court justice ever to do so.
Rovner then quotes an academic to claim that states “could effectively ban contraception by arguing that some contraceptives act as abortifacients.” Well, no, you couldn’t ban all forms of contraception by legislating against some of them. In the Hobby Lobby case Rovner mentions — which of course did not involve government prohibition of any type of contraception, but which she curiously believes “opened the door” to a sweeping prohibition — companies raised an objection to four of 18 methods.
After claiming that letting companies refuse to cover contraceptives their owners consider to be abortifacient is really pretty similar to banning all contraceptives, Rovner adds, “The court used a similar reasoning in a 2020 case exempting the Roman Catholic order Little Sisters of the Poor from even having to sign a paper that would officially exempt them from the ACA contraceptive mandate.” This is doubly mistaken. First, the Little Sisters of the Poor case didn’t turn on any distinction between types of contraception because, as Catholic nuns, they oppose all of them. Second, as Justice Kagan noted in the oral argument over the case, that’s not what was at issue: The nuns objected to a form that would authorize the use of their insurance network to provide contraceptive coverage.
Much of the public argument over abortifacient contraceptives papers over a tension that at least verges on a contradiction. Pro-lifers are held to be anti-scientific ignoramuses for thinking (like President Obama’s Department of Health and Human Services!) that some contraceptives might ever operate to cause the death of human embryo rather than to prevent conception. At the same time we’re told that prohibiting the killing of human embryos would ban contraception. That this article tries to make both cases at once is yet another of its confusions.
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