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Amy Coney Barrett’s Refusal to Label Landmark Contraception Case a ‘Super-Precedent’ Seen as ‘Major Tell’


The Senate hearing for U.S. Supreme Court nominee Judge Amy Coney Barrett on Tuesday waded into controversial waters, when Barrett refused to categorize two landmark cases—Roe v. Wade and Griswold v. Connecticutas “super-precedents,” or precedents that “no justice would overrule, even if she disagrees with the interpretive premises from which the precedent proceeds.” Barrett’s ambivalence toward Griswold raised eyebrows among the legal community.

Griswold was a landmark 1965 Supreme Court case, which held that there was an implied constitutional right to privacy which prohibited states from outlawing the sale of contraception to married couples.

Asked by Sen. Chris Coons (D-Del.) whether she shared the view of her former boss and judicial mentor Justice Antonin Scalia that Griswold was decided incorrectly, Barrett insisted she was her own justice, but refused to say much more.

“I think that Griswold is very, very, very, very, very, very unlikely to go anywhere,” she responded, in a manner echoing her scholarship on what makes a super-precedent.

Justice Scalia did not believe the Fourteenth Amendment provided an implied right to privacy, a theory that was foundational in both the Roe and Griswold decisions.

Pressed further, Coons asked whether “Griswold was wrongly decided and the state should make it illegal to use contraceptives if they so choose?”

Barrett responded by saying she couldn’t express a view “with respect to precedent” but said in order for Griswold to be overturned a state would first have to pass a law banning the sale of contraceptives, which she said was “shockingly unlikely.”

Barrett has said that Roe “is not a super-precedent because calls for its overruling have never ceased, but that doesn’t mean that Roe should be overruled.” She’s also said in that past that she thought it is “very unlikely” that the Supreme Court would “overturn Roe, or Roe as curbed by Casey.” She appears to view the prospect of overturning Griswold in the same way: unlikely but not impossible to overturn.

Therefore, her response on Wednesday did little to reassure the legal community, as many attorneys and law professors pointed out that jettisoning the Fourteenth Amendment’s implied right to privacy could have far-reaching implications.

“Wow, Barrett will not say if Griswold was correct. That’s a major tell,” wrote Georgia State law professor Eric Segall.

“Again, not affirming Griswold is a major tell about Roe. There is no suspense about what she will do, which is quite obviously why she was nominated and why she was groomed for this job for decades. She will write that opinion for the Court,” he added, referring to a hypothetical future opinion that will essentially end Roe’s protections for access to abortion.

Supreme Court litigator Elizabeth Wydra shared a similar sentiment.

“There is no good reason to say [Brown v. Board of Education] and [Loving v. Virginia] were correctly decided but not Griswold,” she wrote. “Unless you think Griswold, which was about criminalizing birth control, was not properly decided.”

Attorney and author Jill Filipovic further opined on how Griswold and Roe are inextricably linked.

“Barrett says that Griswold, the contraception legality case, is safe because no one is challenging it. But also says she can’t (or won’t) opine on Griswold — unlike previous nominees — because the issue at the heart of it (substantive due process) is still being litigated,” she wrote.

“Barrett says it seems ‘unthinkable’ that any legislature would outlaw contraception. But it wasn’t unthinkable just a few short decades ago. And many of the same organizations and politicians that seek to end abortion rights also seek to limit or end contraception access. And as Barrett says, the foundation of Roe — as well as the foundation of cases that struck down laws against same-sex sex and same-sex marriage — is Griswold. So yes, if Roe goes, Griswold and a slew of other sexual privacy cases are vulnerable.”

Others noted that Barrett would not label Griswold a “super-precedent.”

[image via YouTube/PBS screengrab]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.