Republican Sen. John Cornyn from Texas was one of many Republicans who took aim at the notion that “unenumerated rights”—the right to marry, use contraception, or terminate a pregnancy—are truly fundamental during Ketanji Brown Jackson’s confirmation hearings last month.
The slightly weedy line of questioning arose numerous times during the hearings when Cornyn and other senators questioned whether these rights are essential or simply, as Cornyn argued, “another form of judicial policymaking” that can be used “to justify basically any result.” The senators also questioned what precisely the substantive due process protections at the heart of both Roe v. Wade and Obergefell v. Hodges really meant. Cornyn insisted that when the court protects those fundamental rights, “it creates a circumstance where those who may hold traditional beliefs, like something as important as marriage, will be vilified as unwilling to accede to this new orthodoxy.”
Conversation with David Gans, director of the human rights, civil rights, and citizenship program at the of the Constitutional Accountability Center, about his new law review article, which explains that the 14th Amendment expressly contemplated protecting reproductive freedom. Their conversation has been edited and condensed for clarity.
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