Kavanaugh's Confirmation to the Supreme Court Is Likely -  And Contraception Is on the Christian Fundamentalist Chopping Block

The Christian Right’s war on reproductive freedom goes beyond its opposition to abortion; social conservatives are equally disdainful of contraception. And with Judge Brett Kavanaugh’s confirmation to the U.S. Supreme Court likely (although still not a done deal), there is a very real possibility that access to birth control will be in danger in the U.S. along with access to safe and legal abortion.

Last night, President Donald Trump announced that Kavanaugh—a severe social conservative and “strict constructionist” along the lines of Justice Clarence Thomas, Trump nominee Neil Gorsuch and the late Antonin Scalia—would be his nominee to replace Justice Anthony Kennedy on the High Court. Replacing Kennedy with Kavanaugh would be a definite game changer. Nominated by President Ronald Reagan in 1987, Kennedy is a right-wing fiscal conservative who has often sided with large corporations and crony capitalists over unions, workers and consumers. Yet when it comes to social issues, Kennedy has had a strong libertarian streak and tended to vote with the Court’s more liberal and centrist justices when it comes to abortion, same-sex marriage and gay rights. Kavanaugh, however, has no such nuance—and given his “strict constructionist” philosophy, it isn’t hard to imagine him voting to strike down not only Roe v. Wade, but also, Griswold v. Connecticut.

In terms of reproductive freedom, Griswold v. Connecticut is every bit as important as Roe v. Wade—the landmark 1973 ruling that, in effect, legalized abortion nationwide. And one of the people we can thank for the legality of contraception throughout the U.S. is the late feminist Estelle T. Griswold, who was Planned Parenthood’s executive director for Connecticut when Griswold v. Connecticut reached the Supreme Court in 1965. Griswold aggressively fought a Connecticut state law forbidding the sale or use of contraception for married couples; in fact, she had been arrested, convicted and fined $100 in 1961 for violating that law and helping married couples obtain contraception—and the Connecticut Supreme Court upheld her arrest and conviction.

But the U.S. Supreme Court disagreed with the Connecticut Supreme Court, and the Connecticut law was struck down as unconstitutional 53 years ago. Justice William O. Douglas wrote the majority opinion in the case, with Chief Justice Earl Warren siding with Douglas. Warren, appointed by President Dwight D. Eisenhower in the 1950s, was a Republican—yet ironically, he was the most liberal chief justice in the Supreme Court’s history. The Griswold v. Connecticut ruling made it illegal for individual states to ban the sale or use of contraception for married couples, and in 1972—after Warren had retired from the Court and been replaced by Chief Justice Warren E. Burger, a President Nixon nominee—Griswold v. Connecticut was expanded to unmarried couples with the Eisenstadt v. Baird ruling.

 Griswold v. Connecticut and Eisenstadt v. Baird were—like Roe v. Wade—right-to-privacy decisions. But the Christian Right strongly disagrees with the right-to-privacy concept, arguing that no such right exists in the U.S. Constitution. To so-called “strict constructionists,” those decisions were a violation of states’ rights—and the U.S. Supreme Court had no business telling individual states how to govern access to abortion or birth control.

 In fact, Griswold helped pave the way for Roe v. Wade. Law professor Jessica Mason Pieklo recently explained to Salon why she believes that Griswold v. Connecticut and Eisenstadt v. Baird are both on the Christian Right’s chopping block saying, “The contraception decisions are the cornerstones of reproductive and sexual privacy. If you really want to undo those protections, it’s not enough to undo Roe, for example. You need to go back and really get to that heart of the right of privacy.”

In 2005, the National Review published an excerpt from the far-right wingnut Mark R. Levin’s Men in Black: How the Supreme Court is Destroying America—and Levin asserted that the Griswold ruling was wrongly decided and that the right to privacy “has no constitutional basis and no tangible form.” Levin spoke for many other extremists when he blamed Griswold, in part, for the Roe v. Wade ruling and claimed that the U.S. Constitution offers no right to privacy.  

Justice Kennedy, however, did embrace the right-to-privacy concept, which was very much at work when, in 2003, he wrote the majority opinion in Lawrence v. Texas. That ruling struck down a Texas sodomy law, in effect striking down similar laws in other states as well—and replacing him with someone who doesn’t believe in the right to privacy could be damaging in countless ways.

In the confirmation hearings for Kavanaugh, Senate Democrats need to grill Trump’s nominee as aggressively as possible about the right-to-privacy concept and where he stands on it. And Griswold v. Connecticut and Eisenstadt v. Baird need to be mentioned specifically—does Kavanaugh believe that the right to contraception should remain the law of the land, or does he believe that those decisions were wrongly decided? Kavanaugh, of course, will try to be as evasive as possible, and President Trump and Senate Republicans will do everything possible to help him avoid a genuine vetting.

Overturning Griswold v. Connecticut and Eisenstadt v. Baird would not constitute an immediate nationwide ban on contraception, but it would allow individual states to enact prohibitions at the state level. It’s quite possible that if Kavanaugh is confirmed, one could eventually see contraception outlawed in Alabama, Mississippi and Utah, for example, while remaining legal in California, New Jersey, Oregon and Massachusetts. In that type of scenario, a swing state like Pennsylvania could become a major battleground on the issue—with Democrats in Philadelphia and Pittsburgh battling Republicans in Harrisburg over access to birth control in the Keystone State.

Arguing that Kavanaugh—along with Clarence Thomas, Trump nominee Neil Gorsuch, and others on the Supreme Court—might very well vote to overturn Griswold v. Connecticut and Eisenstadt v. Baird is not paranoia. In light of his “strict constructionist” ideology and socially conservative views, it’s a very real concern.