Acton Institute Powerblog

The facts on Amy Coney Barrett and banning contraception

(Photo credit: Sarah Silbiger / Pool via AP.)

Members of the Senate Judiciary Committee spent days prodding Supreme Court nominee Amy Coney Barrett over the hypothetical possibility that the government may one day outlaw birth control. One exchange in particular encapsulated politicians’ inability to grasp the proper role of government, the law, and economic incentives.

Judge Barrett followed the example set by Ruth Bader Ginsburg during her 1993 hearings, when she declined to state her position on any matter that could potentially come before her on the bench. Barrett fielded flurries of questions about everything from segregation-era voting rights laws to Roe v. Wade, as well as an unyielding focus on the Affordable Care Act. Several senators peppered her with questions about Griswold v. Connecticut, the 1965 landmark Supreme Court case that stated, although the justices could not find a right to contraception specifically in the Bill of Rights, it existed within “penumbras, formed by emanations” from the Constitution’s text. But unlike Ginsburg, Barrett’s silence was considered damning.

Sen. Richard Blumenthal, D-Conn., instructed her on Thursday, “I want you to keep in mind how many people are listening and watching, because they may take a message from what you say. They may see what you say and be deterred from using contraceptives or may feel the fear that it may be banned.”

Judge Barrett replied, “I would be surprised if people were afraid that birth control is about to be criminalized.” She previously told Sen. Chris Coons of Delaware a Handmaid’s Tale-style law contravening contraception seems “entirely academic” and “unthinkable.”

The likelihood that a couple based its intimacy on the testimony of a federal judicial appointee seems as remote as it is unromantic. But let’s assume Sen. Blumenthal is correct that such a couple exists. Economics proves that they would react in the opposite way he predicted.

It’s a simple matter of understanding economic incentives. If someone sees that a good or service he or she uses is about to go off the market, he does not preemptively cease using it. On the contrary, he stockpiles as much of it as possible in advance.

Uncertainty or a potential supply shortage pulls forward demand. Rather than spread their purchases over a year, people purchase as much as they can in as short a time as possible. Multiple real-world examples prove that impending prohibition drives up short-term demand, rather than lessening it.

For instance, when Barack Obama was elected president, many Americans assumed he would impose harsh gun control laws. The week he was elected in 2008, background checks to purchase a firearm increased by 49%. Upon his re-election in 2012, background checks spiked again, rising from 9.5 million in 2009 to 13.7 million four years later, according to the NRA’s American Rifleman. This had the unforeseen side effect of causing firearms manufacturers’ stock to soar, padding their profits by at least $9 billion.

While gun control legislation never materialized (thanks in part to the Supreme Court’s D.C. v. Heller decision, which states the Second Amendment confers an individual right to keep and bear arms), the Obama administration purchased hundreds of millions of rounds of ammunition. Gun owners feared a shortage, and prices spiked as people purchased ammunition by the pallet.

The same incentives have taken place during the Trump administration. As Donald Trump prepared his one-front trade war on China, he imposed a series of tariffs and proposed yet more. The result? The U.S. trade deficit with China reached a record high as U.S. manufacturers imported as much as possible before prices rose.

Examples could be multiplied ad infinitum. No one could forget how toilet paper flew off store shelves and hand sanitizer disappeared during this winter’s COVID-19 lockdowns. The desire to assert control over our circumstances is a natural human reaction to the reality of scarcity. Hollywood understands the psychological mechanisms at work. The very scenario Blumenthal sketched out formed the basis of an episode of Seinfeld. Art imitates life better than politics.

A cynical person could speculate why secular politicians quizzed a devout Catholic nominee about contraception, much the same way certain figures revived the ancient stereotype of Jewish dual loyalty.

Shockingly, politics may also be at work in televised Senate hearings. The mythical threat of banning contraception last arose when George Stephanopoulos raised the subject – which no one in politics had proposed – during the 2012 Republican primaries. Just days later, President Obama unveiled his exceedingly narrow “compromise” to force religious organizations’ insurance companies to give women “free” contraceptives. Anyone opposed to Obamacare’s HHS mandate, like the Little Sisters of the Poor, was said to be waging a “war on women.”

We’ll take Sen. Blumenthal at his word that he was only concerned about the potential that Amy Coney Barrett’s words and example might create more life during a global population bust. If so, on multiple fronts, he has no reason to worry. This episode is not the first time the Connecticut senator has shown he does not have a firm grasp of economic principles.

Understanding economic principles – and the Supreme Court’s proper role of interpreting the Constitution as written rather than acting as a nine-member, rotating superlegislature – would go a long way toward improving our national political discourse.

Rev. Ben Johnson

Rev. Ben Johnson is Executive Editor of the Acton Institute's flagship journal Religion & Liberty and edits its transatlantic website.