Banning Justice Barrett?

In an open letter published in late October, hundreds of publishing staff urged Penguin Random House to cancel Justice Amy Coney Barrett’s forthcoming book. Justice Barrett’s crime? Voting to overturn Roe v. Wade—a disastrous decision that resulted in the death of more than 60 million unborn children.

Justice Barrett’s book about the proper judicial role, and how the Constitution requires that judges interpret rather than make law, will be an important book. Its premise—that judges should interpret federal law and the Constitution and not make stuff up—also shows how wrong-headed the open letter is.

The letter fundamentally misunderstands constitutional law. The Supreme Court’s decision in Roe and subsequent cases were widely regarded as wrong and illegitimate exercises of raw judicial power. It is hard to find a serious constitutional law scholar who will defend the reasoning in those cases as the Constitution says nothing about a right to an abortion. Even the late-Justice Ginsburg remarked that Roe was a heavyhanded decision that improperly took away the debate from the democratic branches.

The letter also misunderstands the Dobbs decision. Far from mandating Justice Barrett’s “religious and moral agenda” on anyone, that decision returned to the people and their elected representatives the question of abortion. The decision explained that 55 percent of the voters in Mississippi are women who will now have a voice and a vote on abortion.

The letter is wildly inconsistent with free speech. Without a touch of irony, the letter claims to value free speech while also demanding that one of the largest publishing companies in the world censor speech based on political ideology. The authors claim that the freedom to speak must be balanced against social and moral responsibility. But by whose social and moral barometer? That of the letter’s authors, no doubt.

The First Amendment, however, reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Indeed, the right to believe, and think, and speak may be slipping away. Just a few months ago, The New York Times Editorial Board wrote of a “dangerous” effect of cancel culture:

“For all the tolerance and enlightenment that modern society claims, Americans are losing hold of a fundamental right as citizens of a free country: the right to speak their minds and voice their opinions in public without fear of being shamed or shunned.”

Yet hundreds of members of the publishing industry—those who say they value free speech and the right to publish virtually anything—are now attempting to punish and silence Justice Barrett.

The letter is also wrong on the merits. Without a touch of irony, the letter accuses Penguin Random House of funding the “destruction of human rights.” But it is abortion that allows for the purposeful destruction of a human life. Surely the most basic of human rights is the right to life.

And it is the latter argument that has found support in scientific advancement since Roe. It is now widely acknowledged that life begins at conception. And at fifteen weeks, the point in time which the law at issue in Dobbs applied, babies can move and stretch, open and close their fingers, hiccup, and quite likely feel pain. These scientific facts are something legislatures should be able to consider in deciding whether to protect unborn life.

The letter also points to international law as support for its attempt to cancel Justice Barrett. But it was Roe that was wildly out of step with international views on abortion. As The Washington Post fact-checkers were surprised to find, under Roe, the United States was the fourth most permissive nation on abortion in the world. Most countries do not allow elective abortions at all, and a majority of those that do limit abortion to the first trimester. As Chief Justice Roberts noted at oral argument in Dobbs, Roe put the United States in the company of just a few nations that allow elective abortions up until the moment before birth—countries like China and North Korea.

An absolute right to individual “autonomy” claimed by the letter’s authors would lead to all sorts of things, legal prostitution, illegal drug use, even murder. But the right to autonomy has never absolved someone of harming a third party. To again paraphrase the late-Justice Ginsburg, my right to swing my arm ends at your nose.

According to the letter’s authors, Penguin Random House is “misusing free speech to destroy our rights.” To the contrary, were the publisher to cave to such attempts to cancel Justice Barrett, it would continue cancel culture’s erosion of free speech principles—principles that are crucial to democracy. As Benjamin Franklin once wrote, “Whoever would overthrow the Liberty of a Nation, must begin by subduing the Freeness of Speech.” We can hope that Penguin Random House will hold fast to a version of America where individuals are free to think and say what they believe and where books are not censored prior to their publication.