I was heartened to read in the
Washington Post that Harriet Miers has done some pro bono work. In the absence of evidence that she has made her voice heard on any social issues, her pro bono work at least suggests a concern about access to justice. She also spent time volunteering for Legal Aid in Texas, and she advocated for more legal clinics during her brief time as an elected official on the city council. Nothing extraordinary, but at least she hasn't been completely wrapped up in private practice. It's still amazing to me that anyone could live through the last 40 years of social change in this country without having something to say (in public) about the legal underpinnings of the key issues, but perhaps her confirmation hearings will reveal more.
However, her presentation to members of the U.S. Senate appears to be extremely muddled. Sen. Arlen Specter
initially said she told him she believed the Constitution does include a right to privacy and that
Griswold (a Connecticut case on access to contraception) was rightly decided. But Specter has since
retracted that statement, having been told by the White House that he misinterpreted her remarks.
Griswold, incidentally, involved a statute that stated:
"Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned."
Notice that this language applies even to married people; before 1965, in the state of Connecticut, it was illegal for couples, including married couples, to use contraception. You don't need a very far-reaching right of privacy to conclude that such a law must be struck down. And yet Miers seems to be unable to say that she thinks the case was correctly decided. She can't even seem to say that while the reasoning was flawed, she agrees with the result.
That suggests that Harriet Miers thinks states ought to be able to outlaw contraception if that's what the legislature wants to do. I understand that there are many people who believe that there is no fundamental right to contraception, and that these issues are state issues, and not constitutional ones. But as a young woman in the 21st century, with both a career and a family, my ability to prevent pregnancy through contraception is an intrinsic part of my freedom, individualism, and self-determination. If those concepts aren't central to the Bill of Rights, I don't know what is. I am well aware that the Bill of Rights does not include any provisions about reproductive freedom. Of course it doesn't -- the drafters were men. I highly doubt that contraception was important to them. Most forms of contraception hadn't even been invented yet, and those that did exist were not widely available.
But times change. To women like me -- and there are tens of millions like me -- contraception is essential. The Constitution could never be amended to add a right to privacy that would include a right to contraception. Conservatives would never allow that. So we must work with what we have. If that means stretching the Constitution to include a right to privacy, so be it. That Harriet Miers has signaled that she might not support that is frightening indeed.