On the second day of Judge Amy Coney Barrett’s Supreme Court confirmation hearing – three weeks before the 2020 presidential election, Judiciary Committee Chair Lindsey Graham asked her to define, "in English," the meaning of originalism.
Barrett, who declared herself a “constitutional originalist” had no trouble answering: "In English that means that I interpret the Constitution as a law, and that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn't change over time and it's not up to me to update it or infuse my own policy views into it."
This answer had conservatives cheering, in large part because it mirrored the late Justice Antonin Scalia and his self-identity as an originalist.
Amy Coney Barrett might call herself an originalist. But when it comes to abortion, her misuse of that label is the only original thing about it.
Why? The Founding Fathers would have considered banning abortion insane. Even the Puritans would never have considered such a thing.
In Scarlet Letters: Getting the History of Abortion and Contraception Right, author Ranana Dine noted, “Abortion wasn’t simply legal. It was largely safe, condoned, and often practiced in colonial America, common enough to appear in the legal and medical records of the period.”
There wasn’t an abortion law anywhere in America until 1821, and abortion before the “quickening” (when a fetus starts moving around) didn’t become illegal anywhere in the United States until the time of the Civil War.
If a woman living in New England in the 17th or 18th centuries wanted an abortion, no legal, social, or religious force would have stopped her. What Barrett, Scalia and their ideological ilk serve up as originalism is in fact, a sectarian campaign to impose their religious values on all Americans. And that’s a problem, especially for Jewish Americans.
Why? Jewish tradition not only permits terminating pregnancy, but Jewish law requires it when the life or health of the pregnant woman is at stake. Even orthodox Judaism, which vigorously opposes elective abortion, does not define a fetus as a person. Abortion is a part of Jewish life in America. One in four who can get pregnant will terminate a pregnancy by the age of 45.
Christians trying to deny the majority (also referred to as women) access to abortion are violating the First Amendment, which forbids government from promoting one religion over others, and from restricting an individual’s religious practices.
Abortion rights, or any human right, is not a product of the Constitution, or of any legal system. Such rights exist irrespective of a legal system that recognizes and protects them or fails to recognize such rights and impedes them. The Supreme Court did not create reproductive rights for women. Rather, the Supreme Court pretended to recognize and affirm them.
The United States is the most ‘churched’ nation in human history. Religion has never been so free and diverse. This is attributable to that magnificent wall the founders erected between religion and government. Americans who value their religious liberty should do everything to keep that wall strong and secure, and not tear it down to enforce religious law.
If a pregnant woman, regardless of her religion, cannot freely opt out of the dangers and rigors of pregnancy, labor, childbirth, and frequently single motherhood, she becomes breeding stock for the Christian right, our nine top justices turn into a synod, and the world’s greatest democracy descends further into theocracy.