Kevin Dietsch/Reuters
- Judge Amy Coney Barrett refused to say whether she agrees with the Supreme Court’s landmark rulings protecting access to contraceptives and LGBTQ rights.
- Barrett said during her Wednesday Senate confirmation hearing that she couldn’t “grade precedent” when it comes to these key rulings and suggested that they remain unsettled.
- But she added that it’s “shockingly unlikely” that the Supreme Court would overturn its ruling legalizing access to birth control.
- At the same time, Barrett has said that other landmark decisions, including those that outlawed the “separate but equal doctrine” and legalized interracial marriage, were correctly decided.
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Judge Amy Coney Barrett, President Donald Trump’s Supreme Court nominee, refused to say whether she agrees with the Supreme Court’s landmark rulings protecting access to contraceptives and LGBTQ rights during her Senate confirmation hearing on Wednesday.
Barrett said she couldn’t give “a yes or a no” answer as to whether Griswold v. Connecticut, which legalized access to birth control in 1965, was correctly decided because she “can’t grade precedent.” She said the same of the Court’s 2003 ruling in Lawrence v. Texas, which made bans on homosexual activity unconstitutional, and its 2015 decision in Obergefell v. Hodges, which legalized same-sex marriage.
But she has repeatedly said that other landmark decisions, including Brown v. Board of Education, which banned racial segregation in schools, and Loving v. Virginia, which legalized interracial marriage, were correctly decided.
The judge argued that it’s “shockingly unlikely” the Supreme Court will overturn Griswold.
“I think that Griswold is very, very, very, very, very, very unlikely to go anywhere,” Barrett said.
She added later, "I would be surprised if birth control was about to be criminalized."
But earlier this year, the Supreme Court ruled in Little Sisters of the Poor v. Pennsylvania that the Trump administration could legally allow employers to deny birth control and other contraceptive healthcare coverage to their employees on the basis of the employer's religious beliefs. Similarly, in 2014, the Court decided in Burwell v. Hobby Lobby that corporations could deny contraceptive coverage to their employees on the basis of their religious beliefs, striking down Obamacare's contraceptive mandate.
Barrett argued on Wednesday that the only reason Democratic senators were asking her about Griswold is because of that decision's implications for the Supreme Court's landmark ruling in Roe v. Wade, which protects the right to an abortion. The rulings in both Griswold and Roe are grounded in the right to privacy.
"I think the only reason that it's even worth asking that question is to lay a predicate for whether Roe was rightly decided," she said.
On Tuesday, Barrett said she doesn't believe Roe is a "super-precedent," meaning she doesn't think the case is settled enough to protect it from being overturned by the Supreme Court.
"Roe is not a super-precedent because calls for its overruling have never ceased, but that doesn't mean that Roe should be overruled," Barrett said.
Democrats condemned Barrett's refusal to state her legal position on Griswold and pointed out that recent Supreme Court nominees, including conservatives Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Chief Justice John Roberts, have all said they agree with the ruling in Griswold during their own confirmation hearings.