Her confirmation could be a step toward the end of Roe v. Wade.
President Trump has repeatedly promised to appoint Supreme Court justices who would overturn Roe v. Wade, the landmark 1973 decision that established the right to an abortion in America. Now that he has chosen Amy Coney Barrett to fill the seat left vacant by the death of Justice Ruth Bader Ginsburg, he has moved one step closer to that goal.
Barrett, a judge on the Seventh US Circuit Court of Appeals in Chicago, has attracted praise from social conservatives for her religious faith as well as her strict interpretation of the Constitution. On the federal bench, she’s issued conservative decisions in cases involving the Second Amendment and immigration, among others. But her views on abortion are likely to get particular attention during her confirmation process, given the president’s promise on Roe and the political importance of the issue in an election year.
Barrett has not stated publicly how she would rule on abortion if confirmed to the Court. But her history includes a number of clues about her feelings on the issue, both as a person and as a judge. Barrett has twice voted in abortion cases, both times in ways favorable to abortion restrictions. And while she’s said she doesn’t believe Roe will be overturned outright, she’s also made clear that she’s open to reversing Supreme Court precedent if she thinks a previous decision goes against the Constitution.
Barrett is sure to face a contentious confirmation process where questions about abortion will be front and center. In the past, nominees have avoided answering such questions directly and Barrett is likely to do the same. But her past offers the suggestion, if not the certainty, that she could be a deciding vote to reverse Roe and eliminate the legal right to abortion in America.
Barrett’s record suggests she’d be open to overturning Roe
At 48, Barrett doesn’t have a long judicial record, as the LA Times noted in 2018 when she was first floated as a replacement for Justice Anthony Kennedy. Barrett was confirmed to the Seventh Circuit, her first judgeship, in 2017.
Since then, she’s voted in two abortion cases, each time in ways that could be seen as friendly to abortion restrictions. In one, Box v. Planned Parenthood of Indiana and Kentucky Inc., the Seventh Circuit voted to block an Indiana law requiring parental notification for minors seeking abortions. Barrett joined a dissent saying the law should have been allowed to take effect, as ABA Journal reports.
The second case, Commissioner of the Indiana State Department of Health v. Planned Parenthood of Indiana and Kentucky Inc., concerned an Indiana law that would have banned abortions on the basis of race, sex, or Down syndrome diagnosis, as well as requiring that fetal remains be buried or cremated. A lower court struck down the law, and the state of Indiana appealed only the fetal remains portion.
A panel of the Seventh Circuit declined to rehear the case, but Barrett joined the dissent, arguing that the case should be reheard, and bringing up potential legal merits of the ban on race- or sex-selective abortions, even though that part of the law was no longer actually at issue. The dissenters called the law a “eugenics statute” and wrote that “none of the Court’s abortion decisions holds that states are powerless to prevent abortions designed to choose the sex, race, and other attributes of children.”
In addition to these votes, Barrett has also made a number of public statements on Roe and abortion over the years. A Catholic and member of the religious group People of Praise, she has said that she personally believes life begins at conception, and that Roe “ignited a national controversy” by deciding the issue of abortion by court order rather than leaving it to the states.
However, Barrett has also said several times that she believes the Supreme Court will not overturn Roe.
“I don’t think the core case, Roe’s core holding that women have a right to an abortion, I don’t think that would change,” she said in a 2016 appearance at Jacksonville University. “But I think the question of whether people can get very late-term abortions, you know, how many restrictions can be put on clinics, I think that will change.”
The idea that the Court was more likely to let states chip away at abortion access than to reverse Roe outright was common for many years among advocates on both sides of the abortion issue. Indeed, conservative state legislatures have worked for years to restrict abortion within the bounds of Roe, with Louisiana, Texas, and other states passing numerous laws that have shut down clinics across the South and Midwest.
But now, the calculus is changing.
As Nina Totenberg and Domenico Montanaro note at NPR, Trump has already appointed two conservative justices to the Court, significantly moving it to the right. Meanwhile, some believe that Chief Justice John Roberts may be more amenable to a direct challenge to Roe than to the kinds of incremental clinic restrictions that were at issue in the recent June Medical Services v. Russo, in which he voted to strike down a Louisiana abortion law.
And of course, the death of Justice Ginsburg leaves Trump the opportunity to pull the Court even further to the right. Should Barrett join it, conservative justices might well have the votes — and the will — to go after the right to an abortion directly. If they do, states would be able to ban abortion outright, rather than just passing laws making the procedure harder to get.
Should such an opportunity present itself, Barrett has made clear that judicial precedent wouldn’t necessarily be an obstacle for her. The judge has said she believes the Supreme Court has the responsibility to revisit and potentially overturn old rulings that its current members feel conflict with the Constitution.
“I tend to agree with those who say that a justice’s duty is to the Constitution and that is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks is clearly in conflict with it,” Barrett wrote in 2013.
Despite her past votes and writings, no one knows for sure how Barrett would rule in a Supreme Court abortion case until and unless she gets to consider one. But one thing is clear — Barrett has no particular allegiance to Roe v. Wade, or to Supreme Court precedent more generally. And if she was given the opportunity to overturn the 1973 decision, nothing in her record suggests she wouldn’t take it.
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Author: Anna North
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