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Papers Suggest Supreme Court Nominee Does Not Agree that Constitution Protects Right of Americans to Use Birth Control


Planned Parenthood Federation of America


August 03, 2005

WASHINGTON, DC — Today Planned Parenthood Federation of America (PPFA) expressed growing alarm over U.S. Supreme Court nominee John Roberts's judicial philosophy, as put forth in legal papers released by the National Archives. In a draft article on "judicial restraint," dated approximately November 1981, Roberts expressed disdain for the role of the judiciary in identifying and fully protecting "fundamental rights," and focused his attack, in particular, on the right to privacy, the fundamental right most important to women's health and safety. This article raises even more questions about John Roberts than had been raised previously.

"We are gravely concerned this new information could indicate John Roberts holds a hostile position on the fundamental right to privacy. Indeed, the draft article reflects hostility even to the notion that the Constitution protects the right to access birth control," said PPFA Interim President Karen Pearl. "The draft article attacks the very bedrock of reproductive freedom. Today 95 percent of American women use contraception at some point during their lifetime. Would John Roberts go so far as to deny the vast majority of American women the right to make their own childbearing decisions? It is the Senate's duty to the American people to find out."

While sources report Roberts wrote the article for publication under the name of then-Attorney General William French Smith, if Roberts believes, as the draft clearly suggests, fundamental rights jurisprudence is illegitimate, he cannot be expected to fully protect firmly established fundamental rights. Worse, he may be inclined to undo some or all of the Supreme Court precedents that guarantee our fundamental rights, including the very foundation of women's reproductive rights: the right to use birth control as articulated in Griswold v. Connecticut.

Following are select quotes from the article:

A second means by which courts arrogate to themselves functions reserved to the legislative branch or the states is through so-called "fundamental rights" and "suspect class" analyses, both of which invite broad judicial scrutiny of the essentially legislative task of classification...

Courts cannot,under the guise of constitutional review, restrike balances struck by the legislature or substitute their own policy choices for those of elected officials...

All of us, for example, may heartily endorse a "right to privacy." That does not, however, mean that courts should discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label "fundamental," and then resort to it as, in the words of one of Justice Black's dissents, "a loose, flexible, uncontrolled standard for holding laws unconstitutional." Griswold v. Connecticut, 381 U.S. 479,521 (1965). The broad range of rights which are now alleged to be "fundamental" by litigants, with only the most tenuous connection to the Constitution, bears ample witness to the dangers of this doctrine...

It is troubling — and perhaps an ominous indicator — that Roberts chose to harken back to what was at the time a 16-year-old dissent in Griswold for support of his position. In that case, the overwhelming majority of the court (seven justices) affirmed the right of married couples to access contraception. By the time he wrote this article, Griswold had been reaffirmed by the court multiple times in multiple opinions on the right to privacy. Indeed Griswold was the foundation for subsequent court rulings on the right to reproductive freedom, including, significantly, the court's 1973 decision in Roe v. Wade (decided eight years before Roberts wrote the article released yesterday).

The draft article penned by Roberts suggests a link between his views on the role of the courts and the impact he could have — if confirmed — on fundamental rights, including the right to privacy. This heightens Planned Parenthood's concerns and the need for thorough questioning during his Judiciary Committee hearings.

"This article demonstrates a disturbing trend; the more we learn about John Roberts, the farther outside the mainstream he appears," said Pearl. "It is vitally important that the White House release all documents related to John Roberts's service and that the Senate fully question him on the full range of issues that hinge on fundamental rights: privacy, childbearing, contraception, and the right to choose."

PPFA has expressed serious and grave concerns about the nomination of John Roberts to the Supreme Court.

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Roberts's Paper Trail Indicates Bias Against Right to Privacy