The Senate Judiciary Committee vote on the nomination of Judge Amy Coney Barrett falls on the Oct. 22 feast of Pope St. John Paul II, who proposed his concept of the “feminine genius” as a counterpoint to anti-Christian feminism.
Yet there was something else from John Paul simmering below the surface at the Barrett hearings — another one of his creative teachings, the theology of the body. It was given an explication not by Barrett, but by one of the Democratic senators opposed to her nomination, Sen. Chris Coons, who occupies the Delaware seat that Joe Biden held for 36 years.
The theology of the body is about love and its bodily expression in both marital union and celibacy. It is not principally about contraception, but it is there that the theology of the body is most countercultural. Conjugal union is meant to express a union of persons, John Paul taught, and so it has “language” of its own, a language of “total self-gift.” The Supreme Court has taken a different view, one agreeable to Sen. Coons, and he follows the same logic to different ends.
It was curious that Coons would question Barrett about contraception and the 1965 Griswold decision that ruled unconstitutional a Connecticut law (passed by a Protestant-majority legislature) that regulated the use of contraceptives by married couples. The court struck down the law, ruling that it violated a constitutional “right to privacy,” which, though not written in the U.S. Constitution, was found by the majority to “emanate” from the First, Third, Fourth, Fifth and Ninth Amendments, creating a “penumbra” of rights that, though not enumerated, enjoy constitutional protection.
Barrett declined to give her view of Griswold. It was entirely unlikely that it would be challenged because, she noted, there were no laws today barring contraception and it was “shockingly unlikely” that there would be any. So why did Coons want to talk about a potential ban on contraception? By his line of questioning Coons clearly knows that there is a direct connection between contraception and abortion, as the theology of body teaches. Barrett knew what Coons was really getting at.
“It seems unthinkable that any legislature would pass such a law [against birth control],” Barrett answered. “I think the only reason that it’s even worth asking [about Griswold] is to lay a predicate for whether Roe v. Wade was rightly decided, because Griswold does lie at the foundation of that line of precedent.”
Indeed, it does. And to emphasize exactly that, Coons laid out a sort of reverse theology of the body, outlining how the consequences of creating a constitutional right to contraception embraces a logic that extends very far.
“To be clear about what it underlies, it’s not just that Griswold was a landmark case, as you well know,” Coons explained. “It anchors a lot of modern liberty interests in personal and family autonomy. It was extended to unmarried couples in Eisenstadt [v. Baird (1972)], and extended to the right for women to control their reproductive choices in Roe [1973] and Casey [1992], but it was also extended to support same-sex couple intimacy in Lawrence v. Texas [2003] and ultimately that same-sex couples have an equal right to marry in Obergefell [2015].”
As Coons tells the tale, contraception in marriage led to a right to sexual intimacy outside of marriage, to abortion, to homosexual acts to same-sex “marriage.” It is possible that, facing a devoutly Catholic mother of seven, he might have suspected that she had philosophical or theological reservations about contraception and therefore would look askance at the whole range of what Coons calls “personal and family autonomy.”
Coons and Barrett were discussing constitutional law, not moral theology, which is not at issue on the court. A Catholic, knowing Church teaching that contraception is immoral, may well think that there should not be a law against it, even if the Constitution is silent on the matter.
Not everything that is immoral should be illegal — as taught long ago by St. Thomas Aquinas. That’s why lesser things are illegal, like fraud (Seventh Commandment), while more serious matters are not, such as dishonoring your parents (Fourth Commandment) or failing to keep holy the Lord’s Day (Third Commandment).
There is, though, an analogy to be made between the path of constitutional logic, which Coons pointed out links contraception to “same-sex marriage,” and the moral coherence of John Paul’s theology of the body.
In Familiaris Consortio, published while the theology of the body was still being delivered at the Pope’s Wednesday general audiences, John Paul made his argument that sexual relations have their own “language” and logic. Contraception failed to respect that language.
“Thus the innate language that expresses the total reciprocal self-giving of husband and wife is overlaid, through contraception, by an objectively contradictory language, namely, that of not giving oneself totally to the other,” John Paul wrote (32).
The Supreme Court gave a rather different analysis in its 1992 Casey decision affirming the constitutional right to abortion. Instead of the body having its own “language” that must be truthful, the high court argued the opposite, namely that our language can create its own reality.
“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” wrote Justices Anthony Kennedy, David Souter and Sandra Day O’Connor, all Republican appointees, in Casey.
That infamous “mystery of life” passage is radical metaphysics masquerading as constitutional jurisprudence. So it is that matters judicial wander rather farther afield now — even into theology of the body, courtesy of Sen. Coons.
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