Wildly Anti-Abortion Judge Can't Possibly Say Whether She'd Restrict Birth Control

Supreme Court nominee Amy Coney Barrett, who has made her distaste for Roe v. Wade obvious in statements she’s made in the past and in anti-abortion ads that she has signed her name to, refused on Tuesday to answer basic questions about her legal views, including on abortion access. But as the Nation’s Elie Mystal wrote of her evasions, her non-answers in fact were telling. “Barrett came as close to saying she would overturn Roe as one can get without literally spelling it out,” he wrote. “She was given numerous opportunities to defend the basic concept of a women’s right to choose, as Ruth Bader Ginsburg did at her confirmation hearings. She declined. She was given numerous opportunities to say that a woman’s right to choose was protected in the Constitution. She refused.” Instead, Mystal wrote, “she tried to make Roe sound like it wasn’t an important precedent”—a sign of how she, in all likelihood, would justify her reasoning to gut it.

On Wednesday, Barrett engaged in similar evasions, this time when it came to birth control access, refusing to answer whether a key decision that granted married couples the right to use contraceptives, Griswold v. Connecticut, was decided correctly. As Jezebel’s Molly Osberg wrote recently, the anti-abortion movement, led by Catholic activists, has long included ending access to birth control as part of their broader attack on reproductive rights. In this context—seen as well in Ted Cruz’s offhand remarks on Tuesday describing birth control as “abortion-inducing drugs”—Barrett’s coyness is a sign of nothing more than a refusal to answer questions that we already know the answers to.

During the hearing, Democratic Senator Chris Coons brought up Griswold, noting that Justice Antonin Scalia believed that it had been decided incorrectly. Coons shared that when he and Barrett had spoken over the phone, Barrett had told him that she “couldn’t think of any specific issue of law” that she disagreed with her mentor on. “Do you agree with him that Griswold was wrongly decided and thus they should be able to make it illegal to use contraceptives, if they so chose?” Coons asked Barrett.

Barrett demurred to answer. “Senator, as I said a number of times, I can’t express a view, yes or no.” She continued, “I think that Griswold is very, very, very, very, very, very unlikely to go anywhere. In order for Griswold to be overruled, you or a state legislature would have to pass a law prohibiting the use of birth control, which seems shockingly unlikely, and then a lower court would have to buck Supreme Court precedent and say, ‘We’re not following Griswold.’ Again, seems very unlikely. So I think that it’s an academic question that wouldn’t arise.” When pressed, she doubled down, again painting it as an “academic” question. “I think Griswold is not going anywhere unless you plan to pass a law prohibiting couples, or all people, from using birth control,” she said. When pressed, she doubled down, again painting it as an “entirely academic” question. “I think Griswold is not going anywhere unless you plan to pass a law prohibiting couples, all people, from using birth control,” she said.

In the afternoon, Senator Richard Blumenthal pressed her on Griswold again. “Correctly decided?” Blumenthal asked.

Barrett, once again, refused to answer the question.

“These are fundamental cases, and I’m asking your legal position,” Blumenthal said.

“I would be surprised if people are afraid that birth control is about to be criminalized,” Barrett replied. She continued: “So Senator Blumenthal, I can’t give a yes or a no, and my declining to give an answer doesn’t suggest disagreement or agreement.”

But when it comes to birth control access, we already know exactly how Barrett will rule in the future. After all, the conservative justices on the Supreme Court have already taken steps to restrict contraceptive access under the guise of religious freedom. Barrett, the perfect culture warrior for the religious right, knows exactly what she would do—and so do we.