Dear Erin and Nancy,
We are excited that you are focusing on Judge Matthew Kacsmaryk, and his authority to impact contraception access around the nation.
There is an argument that he has no such authority, an argument that transcends reliance on written constitutions or even international law.
This is the argument: Nations are not magically constituted in the past, but either constituting inclusive democracies or not, depending on the laws and policies that surround having children. If those laws and policies ensure minimum levels of welfare, at least begin to ensure equality of opportunity, restore the climate and biodiversity using ecocentric approaches, and treat the addition of each new person as inverse to absolute self-determination, they are constituting legitimate societies.
If we wish to maximize relative self-determination, where else would we find that value but family reforms? There is nowhere else.
An easy proxy for all of this might be the Children’s Rights Convention – and pegging family planning to it to ensure birth and development conditions consistent with it
We can also think of it in terms of a new vision of Roe v. Wade.
If nations do not do this, they are constituting something other than democracy.
Moreover, these truly constitutive laws and policies must override all conflicting interests, at least if we take freedom and democracy seriously. They come first. And we certainly imagine people like Judge Kacsmaryk value freedom, and value the people who died fighting in the name of it.
In the case of contraceptive access the application of such primary laws and policies is clear. We need universal access, and courts have no authority to prevent it.
This new model – where we take human rights and their ability to limit governmental authority seriously – could present a difficult choice for your organizations. It will mean abandoning the privacy model of family planning based on the Cairo Consensus as a failure that helped ensure the climate crisis and massive inequity, though it was the model we all long relied upon. That model also – by ensuring growth – made some of your key funders (and we know one of them well) a lot of money.
But the upside would be a better vision of and argument for reproductive freedom, and one that does not rely on a system of government that long ago undercut it’s own authority to rule. And if we choose the override model, there are incremental ways short of all out revolution to guarantee that we constitute legitimate – by which we mean simply inclusive – democracies.
The alternative would be for everyday citizens, like the our members, to simply wait for courts and Congress to mitigate the climate crisis, and protect and ensure the development of the children who will comprise our future, while watching Congress operate in total attenuation from its constituents, and amid widening inequity that empowers some at cost to others.
Free people would not be willing to do that. We are not willing to do that.
The Team at FairStartMovement.org