Apparently, President Trump sent women’s rights back to the Stone Ages when he announced his Supreme Court nominee. According to the latest scaremongering, Judge Brett Kavanaugh will be coming after contraception if he makes it to the Supreme Court.
But anyone who thinks Kavanaugh will criminalize condoms probably expects Vice President Mike Pence to seize control of the White House any day now, establish a theocracy, and force women to wear white bonnets and starched crimson red robes. Which is to say, anyone who actually thinks this is crazy.
One Daily Beast column by Jay Michaelson highlights the hysteria. By nominating an originalist like Kavanaugh, the author argues, by picking someone who will interpret “the Constitution as it is written,” the president may have “doomed the right to abortion, same-sex marriage, and maybe even contraception.”
[More: Women’s March denounces ‘XX’ in statement on Brett Kavanaugh’s Supreme Court nomination]
Forget abortion or same-sex marriage—contraception could be banned under Justice Kavanaugh https://t.co/W8qg7txtFQ
— Justin Miller (@justinjm1) July 10, 2018
Because Kavanaugh is an originalist, the Michaelson logic goes, he rejects the so-called “right to privacy” at the heart of Griswold v. Connecticut, the 1965 Supreme Court case which forbids government bans on birth control. It is a pretty straightforward argument. It is also misleading. There are at least three reasons not to start burying birth control in the backyard just yet, though.
1. Kavanaugh is pro-contraception. How do we know this? Because the judge explicitly said so in Priests for Life v. HHS. In that case about Obamacare’s contraception mandate, he concluded that there was a “compelling governmental interest” in facilitating access to contraceptives:
Is Kavanaugh a textualist? Absolutely. A prude? Not at all. There is no reason to believe he would suddenly change his mind once confirmed to the Supreme Court.
2. Ignoring the imagined “right to privacy” doesn’t mean an automatic return of contraception bans.
The late liberal Justice Harry Blackmun opposed a contraception ban but dissented from the majority in that case when the Suprme Court overturned Connecticut’s ban. Blackmun argued at that time that his colleagues were essentially legislating from the bench and ruling the Connecticut ban unconstitutional by “reciting reasons why it is offensive to them.” But assuming Kavanaugh even gets a chance to agree with Blackmun, that doesn’t mean an immediate return of contraception bans. It means the issue would be decided at the state level.
3. Kavanaugh can’t convince the entire country to just reverse the sexual revolution. No matter how brilliant that jurist may be, there is no state in the union in 2018 where a large portion of the voting population wants to revive the contraception bans that Griswold knocked down.
The real problem that liberals like Michaelson have with Kavanaugh is that, while the judge is fine with contraception, he doesn’t want the government forcing one person to buy another’s birth control pills. And that is very different than “dooming” right to contraception.
