Judge Pillard
Politics, Abortion, and Narrow Confirmation
Cornelia T.L. Pillard won confirmation to the D.C. Circuit Court of appeals by one of the narrowest margins in recent memory. Particularly startling was Indiana Senator Joe Donnelly’s nay vote in the matter, since he has been a considerably reliable caucus vote since arriving in January. It turns out that Judge Pillard committed the original sin of moderate Democrats, forcefully arguing for reproductive rights while anchoring her philosophy in the substantially less assailable doctrine of Equal Protection. She writes:
Reproductive rights are traditionally understood to be protected by the privacy aspect of the due process liberty guarantee, but equal protection is also at the heart of the matter. Many of us intuitively know the close relationship between sex equality and abortion rights, and the law, too, is starting to reflect it… Paradoxically, while reproductive rights should be doubly constitutionally protected by the overlapping liberty and equality guarantees, that dual pedigree can instead leave reproductive rights more vulnerable… [T]he truth is that reproductive rights are important both for the reasons that the Constitution recognizes liberty rights to privacy and bodily integrity and for the reasons that it recognizes the right to sex equality.
This has largely been the feminist critique of Roe since nine men held that reproductive choice was a protected under the liberty interest of the Due Process Clause of the Fourteenth Amendment. The holding in Roe (and restated in Casey) missed the economic and social equality that reproductive freedom bestowed upon women, and therefore reproductive freedom must be similarly protected under the Equal Protection Clause of the same Amendment.
I have always been much more sympathetic to this line of reasoning, it does not seem at all clear that the liberty interest can textually be construed to medical regulation. If there were a liberty that protected a relationship between doctor and patient, or a constitutional guarantee that I may be allowed any drug or procedure that my doctor permits, it would upend our entire justification for the Food and Drug Administration, and numerous new regulations now occurring under the Affordable Care Act. Indeed, state regulation of medicines, procedures, insurance, and the whole field of medicine is one of the most regulated fields in the world. However, separating medical regulation from the economic and social justice permitted by controlling ones reproductive health allows for a more cogent argument on the merits.
Justice Ginsburg has long supported the notion that the Equal Protection Clause provides a better constitutional basis for reproductive rights, writing in the 2007 abortion case Gonzales v. Carhart:
Women, it is now acknowledged, have the talent, capacity, and right “to participate equally in the economic and social life of the Nation.” Their ability to realize their full potential, the Court recognized, is intimately connected to “their ability to control their reproductive lives.” Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.
This is far more persuasive of an argument to me, one that Justice Ginsburg has been marshaling for her entire career. It seems clear that in supporting the argument that reproductive freedom is based on a more complex set of rights is what caused Judge Pillard’s confirmation vote to become so contentious. She presented a thoughtful and expansive view of reproductive freedoms during her academic tenure, a task which provided ammunition to opponents. Her ideas are clear, thoughtful, and all to rare when taking fewer public positions is rewarded with power.
Reshaping constitutional doctrines to be more intellectually coherent is a cause I have long supported. Incorporation through the Privileges and Immunities Clause, reproductive freedom through Equal Protection, and general privacy lodged firmly in the Fourth Amendment. Judge Pillard conformation battle should provide hope that an individual with forceful egalitarian views can still be rewarded with prestigious judgeship.
This may, too, merely be a prelude to a larger and more contentious confirmation hearing, one with profound implications.
Update:
I just received a total non answer from Donnelly’s office regarding his vote against her confirmation
