Unable to muster enough concern among constituents with questions on abortion, same-sex marriage, and sexual assault, Democrats focused Wednesday grilling judge Amy Coney Barrett about her feelings on birth control and specifically the 1965 Supreme Court case, Griswold v. Connecticut, where the Court found a “right to privacy” in the Constitution’s Bill of Rights for couples seeking to use birth control.
Sen. Richard Blumenthal (D-CT) laid into Barrett on the subject Wednesday afternoon, voicing concern that women who were watching Barrett’s Supreme Court nomination hearings could be “deterred” from using birth control over fears that Barrett might use her position on the Court to outlaw contraception.
“Barrett says she is able to express her opinion on Brown v Board of Education because she has made past comments about it, but Griswold she stays away from giving a legal position,” Fox News reported in their liveblog of the event. “Blumenthal, asking Barrett about her not giving an opinion on Griswold — which legalized contraception, suggests people may be deterred from using birth control.”
“I want you to keep in mind how many people are listening and watching because they may take a message from what you say, they may see what you say and be deterred from using contraceptives or feel a fear that it could be banned,” Blumenthal said.
Barrett responded with her now-trademark candor, telling Blumenthal that she would be “surprised” if people believed birth control “was going to be banned.”
Clearly, left-leaning activists are concerned that birth control could be banned as Twitter exploded in worry that Barrett’s non-answer meant she’d be open to reconsidering Griswold and potentially banning contraception.
“Under questioning from Sen. Blumenthal, Judge Barrett refuses to answer unequivocally whether Griswold was correctly decided. Griswold gave Americans the right to use contraception. This came right after Barrett said Brown v. the Board of Education was correctly decided,” MSNBC’s Kyle Griffin panicked on Twitter.
Griswold is, of course, more than a half-century old, and one of the foundational cases for “substantive due process” and introduced the concept of a “right to privacy” in the “penumbras and emanations” of several Constitutional amendments, including the 4th. It, arguably, led directly to the Court’s decision in Roe v. Wade, which extended the right to privacy in family planning decisions to procuring an abortion.
Barrett noted that it is unlikely that the issue would come before the court. Recent Supreme Court cases on birth control have centered around the Constitutionality of the Affordable Care Act’s birth control mandate, which requires even religious employers to supply contraception to employees free of charge through their health insurance plans. The Supreme Court determined, in a split decision, that such a mandate violated the First Amendment’s guarantee of Free Exercise of religion. The Court did not consider any privacy concerns.
Although Democrats were studiously avoiding Barrett’s Catholic faith during the Tuesday question-and-answer portion of her confirmation hearings, Fox News notes that on Wednesday, ‘Democrats questioned Barrett about cases that they suggested might be at odds with her Catholic faith,” including cases about contraception, abortion, and gay rights.
Doubling down on his accusation following the Griswold exchange, Blumenthal suggested that Barrett might “criminalize” same-sex relationships, to which Barrett replied that, “[t]o suggest that’s the kind of America I want to create isn’t based on any facts in my record.”