While much of the focus on Brett Kavanaugh’s nomination to the Supreme Court is on a genuine concern about the possible overturning of Roe v. Wade, it is critically important to understand that the underpinnings of a woman’s right to choose to terminate her pregnancy are rooted in a Constitutional right to privacy. Prior to the Supreme Court’s 1965 decision in Griswold v. Connecticut, states could outlaw contraception and criminally prosecute anyone who distributed or obtained any form of birth control.
Griswold was a landmark decision as there is no specifically named right to privacy in the Constitution. Justice Douglas wrote the majority 7-2 decision and established a right to marital privacy to protect married couples from the state’s restrictions on how they chose to engage in sex and procreation. Justice Douglas’ decision made clear that this right to privacy is “fundamental” when it concerns the actions of married couples, because it “is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of our civil and political institutions.”
Strict constructionists of the Constitution have often bristled at the creation of new rights not contemplated by our Founding Fathers. However, as Justice Goldberg pointed out in his concurring opinion in Griswold, the Ninth Amendment, which states that the Bill of Rights does not exhaust all the rights contained by the people, allows the Court to find the “fundamental right to marital privacy” without having to ground it in a specific constitutional amendment.
In 1972, the Supreme Court expanded the right to use contraception to everyone, regardless of marital status, in the case of Eisenstadt v. Baird. In that case, Justice Brennan, writing for a 6-3 majority, expanded the right of privacy to everyone by rooting it in the equal protection clause of the 14th Amendment.
Brett Kavanaugh has already stated that he would vote to overturn the Affordable Care Act’s mandate to cover contraception. While he did explain that government funded contraception is important, he did so in the context of explaining that it helps to prevent abortion. Remarkably, that opinion has been criticized by some conservatives.
Of course, the right to privacy goes far beyond contraception, and in our modern world the Supreme Court will continue to determine how much privacy we have in the internet age. In that regard, Kavanaugh’s views are also outdated. Indeed, he has compared GPS tracking technology to beepers.
In sum, while the concern that a woman’s right to choose the outcome of her pregnancy may be endangered if Brett Kavanaugh joins the Supreme Court is certainly valid, it is important to understand that the right to choose as enshrined in Roe v. Wade is rooted in a much larger right to privacy. When the U.S. Senate takes up his nomination, they should probe his views on the right to privacy deeply.
For more information on how I can help you accomplish effective, progressive systems change contact Jeff Spitzer-Resnick by visiting his website: Systems Change Consulting.