Roe and Griswold (and Barrett)

POLITICS & POLICY
Supreme Court nominee Amy Coney Barrett speaks during her confirmation hearing before the Senate Judiciary Committee on Capitol Hill, October 12, 2020. (Patrick Semansky/Pool via Reuters)

Yesterday, Senator Chris Coons asked Judge Barrett about Griswold v. Connecticut, the 1965 Supreme Court decision holding that the Constitution protects a right to “marital privacy” that encompasses the use of contraception. Barrett said that it “seems unthinkable that any legislature would pass such a law” and that the precedent was “very unlikely” —actually, she used six “very”s — “to go anywhere.”

On Twitter, I suggested the same and got a lot of criticism. Some of the critics said that conservatives are suspiciously silent about Griswold; others said that of course conservatives on the Supreme Court would get rid of Griswold because conservatives have been so vocally hostile to it for decades. Just another day on social media.

A couple of claims that kept coming up might be worth addressing. A few people seemed to be under the impression that the Supreme Court had undermined Griswold by ruling, in the Hobby Lobby case in 2014, that companies have statutory rights not to cover contraceptives to which they object. Senator Dick Durbin (D., Ill.) has indignantly made this accusation in the past. People who think that should read the case, and notice that the vigorous dissent by Justice Ginsburg, flawed though it was, didn’t mention Griswold. She understood the case was unrelated to whether the Constitution protects contraception from regulation.

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The most common misunderstanding, though, was that it would be impossible to overturn Roe without also overturning Griswold. That view assumes that the only way to overturn Roe (and successor cases such as Casey) would be to find that the Constitution protects privacy only in the specific ways indicated by the text and original understanding of specific constitutional provisions: that there is no more general privacy right.

But if the Court ruled that way, it would not need to overrule Griswold explicitly or even sub silentio. It could just be silent on whether the Constitution protects contraception, secure in the expectation that the Court is unlikely ever to have to rule on that question. And there are many other ways the Court could overrule Roe. It could decide that while there is an amorphous privacy right, the state’s interest in protecting human lives in early stages of development differentiates abortion from contraception in a way that allows more stringent regulation of the former. (After all, in some sense that’s already what the Court says.) It could decide that the attempt to micromanage abortion policy following Roe, unlike the Court’s ruling on contraception, had proven unworkable.

A related misunderstanding is that a justice who believes Griswold to be poorly reasoned and wrongly decided has no ground for refraining from overturning it (and that a person who thinks it wrongly decided is logically committed to desiring its overturning). That’s not true.

First, if the justice believes that erroneous precedent has some force simply because it is precedent, she would have to undertake an inquiry about how much force it has and whether it is defeated in a particular case, and the answers for Griswold and for Roe could be different. Second — as Judge Barrett tried to explain to mostly uncomprehending senators again and again — you’d have to have a live “case” or “controversy” to occasion the ruling. Legislatures haven’t been enacting bans on contraception for the courts to adjudicate. They often pass legislation that requires judicial decisions about the contours of the abortion right that the Court keeps fiddling with.

I checked Barrett’s testimony against Samantha Raphelson’s account for NPR, by the way, and it gets the point about precedent wrong. She writes, “Coons pointed to a 2013 Texas Law Review article in which Barrett argued that a Supreme Court justice should disregard precedent if she believes an earlier ruling was incorrectly founded.” That’s not what she argued. She was explicitly defending the Supreme Court’s longstanding practice of giving some weight to precedent. She merely argued against giving a lot more weight to it. In a passage frequently taken out of context, she rejected the idea that protecting the legitimacy of the Supreme Court is an independent reason to retain mistaken precedents.

The bottom line is that there is no reason to think that the Supreme Court, with or without Barrett, is ever going to hear a case about the core holding of Griswold, let alone overturn it.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.


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