For someone who has long vowed to appoint what he called “pro-life” judges to the Supreme Court, President Donald Trump said last week that he didn’t know the position of his nominee Amy Coney Barrett on Roe v. Wade, the nearly 50-year-old Supreme Court decision legalizing abortion.
“You don’t know her view on Roe v. Wade. You don’t know her view,” Trump told Democratic nominee Joe Biden in last week’s presidential debate, in response to Biden’s admonition that the future of Roe is on the ballot this fall.
But for Barrett’s supporters and detractors alike, it’s clear that her confirmation would cement a conservative majority on the Supreme Court to limit abortion access.
Even if the court doesn’t overturn Roe, there are cases percolating in courts nationwide that would chip away at an individual’s right to decide whether to terminate a pregnancy and give the state room to second-guess that decision.
In 2006, Barrett added her name to a list of “citizens of Michiana” who signed a “right to life ad,” sponsored by a group that opposes abortion, that appeared in the South Bend Tribune. The ad from the Saint Joseph County Right to Life calls for putting “an end to the barbaric legacy of Roe v. Wade and restore laws that protect the lives of unborn children.”
Ten years later, Barrett told an audience at Jacksonville University she believed that while Roe wouldn’t be overturned, access to abortion could eventually be limited.
“I don’t think the core case – Roe’s core holding that, you know, women have a right to an abortion – I don’t think that would change,” Barrett said. “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 would change.”
Supporters of abortion rights are watching more than 15 cases percolating in the lower courts that will likely arrive at the Supreme Court in the coming terms. They include issues such as requirements for the burial of fetal tissue, hospital admission rules and parental notification, as well as bans on abortion as early as six, eight or 10 weeks into pregnancy.
How far Barrett would go is a question roiling the country as progressives lament that Trump chose to replace the liberal late Justice Ruth Bader Ginsburg with a 48-year-old conservative jurist who is the feminist icon’s ideological opposite, especially when it comes to reproductive health.
“At this unprecedented time, and while the nation is still mourning and paying tribute to Justice Ginsburg’s tremendous contributions to advancing equality, President Donald Trump has nominated a replacement who would gut Justice Ginsburg’s legacy and turn back five decades of advancement for reproductive rights,” said Nancy Northup, president and CEO of the Center for Reproductive Rights.
Conservatives, some of whom gathered on the court’s plaza last Saturday night as the President announced the nomination, think their time may have finally come. Chanting “6-3, 6-3” to reflect the court’s new potential majority that night, they believe Trump has fulfilled a campaign promise from 2016 to appoint anti-abortion justices.
Barrett’s record indicates she believes the Roe v. Wade decision is an act of “judicial imperialism,” Republican Sen. Josh Hawley of Missouri said at a Judiciary Committee meeting last Thursday. “I do believe Judge Amy Coney Barrett’s record bears that out.”
On the bench, Barrett, a deep thinker and meticulous jurist who was well aware long before her nomination that she was on Trump’s short list, has left a careful trail. That trail reveals votes open to more restrictive laws and a state’s expanded ability to regulate abortion, as well as a judicial philosophy aligned with that of her mentor, the late Justice Antonin Scalia, who believed Roe v. Wade was wrongly decided.
What Barrett said at her 2017 Senate hearing
Confirmation hearings, long on drama and often short on substance, rarely reveal anything new about a nominee.
In September 2017, Barrett appeared before Congress for her confirmation to the 7th US Circuit Court of Appeals and was pressed on Roe v. Wade.
She followed the script of most every nominee to come before the Senate Judiciary Committee, noting that lower court judges are bound by Supreme Court precedent.
“Roe has been affirmed many times and survived many challenges in the court, and it’s more than 40 years old, and it’s clearly binding on all Court of Appeals,” she said. “And so it is not open to me or up to me, and I would have no interest in, as a Court of Appeals judge, challenging that precedent – it would bind.”
Then-Judiciary Chairman Chuck Grassley asked Barrett about her Catholic faith.
“When is it proper for a judge to put their religious views above applying the law?” the Iowa Republican queried.
“If there is ever a conflict between a judge’s personal conviction and that judge’s duty under the rule of law, that it is never, ever permissible for that judge to follow their personal convictions in the decision of the case rather than what the law requires,” she said.
Sen. Dianne Feinstein of California, the top Democrat on the panel, persisted, asking the nominee whether she considered Roe v. Wade the kind of precedent that could be overturned.
“If I were confirmed, I would follow all Supreme Court precedent without fail,” Barrett responded.
Asking such questions is often a fruitless endeavor. That’s because every lower court judge is bound by Supreme Court precedent. But the stakes would be different on the high court.
During her upcoming confirmation hearing Barrett will be asked what she thinks of the doctrine of stare decisis. It’s a legal term that refers to a court’s practice of following precedent. Literally, it means “stand by the thing decided.”
It comes up as senators push to see a particular nominee’s view on the doctrine. Justice Clarence Thomas, for example, has said he has little respect for it, while other justices believe it’s an important stabilizing factor for the court.
O. Carter Snead, a longtime colleague at Notre Dame, says he’s hard-pressed to see where Barrett has been definitive on Roe v. Wade.
“In her scholarship, I’ve never seen her stake out a position on Roe v. Wade, as to whether it was decided correctly in the first instance as an originalist matter, or how principles of stare decisis might apply to overturning it.”
Democrats are likely to turn to Barrett’s own writing from 2013, when she was a professor at Notre Dame and she penned an essay centered on the doctrine. While she pointed to its strength, her critics focus on the fact that at one point she suggested room for some cases to be overturned.
“If anything, the public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle rather than desire that precedent remain forever unchanging,” she wrote.
“Court watchers,” she added, “embrace the possibility of overruling, even if they may want it to be the exception rather than the rule.”
Her critics won’t be able to point to an appellate court opinion where she has taken a position in a merits case cutting back on Roe, but they are looking at two votes in particular.
What Barrett has said about abortion on the bench
In one, a three-judge panel struck down an Indiana abortion law with provisions dealing with fetal remains and barring abortion based on the race, disability or sex of the fetus. Indiana asked the full appeals court to review only the provision on fetal remains, which it declined to do.
But Judge Frank Easterbrook wrote in dissent, saying he thought the full court should have voted to revisit the case, and was joined by Barrett. Easterbrook returned to the law’s provision barring abortion on the basis of race, disability or sex of the fetus, calling it a “eugenics statute,” and he wrote that there is a “difference between ‘I don’t want a child’ and ‘I want a child, but only a male, or ‘I want only children whose genes predict success in life.’ ”
“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,” he wrote.
The fact that Barrett expressed a will to reconsider a dispute about the Indiana law (even though Indiana didn’t even ask for a rehearing on that provision) suggests she thought the panel had gotten the decision wrong.
Her critics seize on the Indiana law as being just the kind of statute that chips away at an individual’s right to make the decision on whether to terminate a pregnancy and gives the state room to second-guess that decision.
In another case, a three-judge panel struck down a law dealing with parental notification when it comes to minors seeking abortions. Planned Parenthood was challenging the law before it went into effect. The panel held the law was likely unconstitutional. Again, the full 7th Circuit Court denied Indiana’s request to rehear the case.
Barrett wanted to reconsider the panel decision and joined the dissent, which raised questions pertaining to when a law could be blocked prior to its enforcement date. “Preventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure,” Judge Michael Kanne wrote.
Abortion rights activists say her vote signals that she may believe a law should be challenged only after it goes into effect. As things stand, restrictions are often blocked before they take effect.
“It’s a dangerous sign that in the only two abortion cases she heard she was going to reach out and disrupt a three-judge opinion by her colleagues that these restrictions violated 40 years of Supreme Court precedent,” said Helene Krasnoff, vice president of public policy litigation and law at the Planned Parenthood Action Fund.
“Importantly, there is nothing in her record to suggest the opposite. In fact every writing and every decision suggests that she would be a reliable vote to restrict access to abortion,” Krasnoff said.
Barrett’s supporters note that she voted with the majority to uphold Chicago’s so-called “bubble zone” ordinance, which bars opponents of abortion from approaching someone within 8 feet in the vicinity of a clinic if the purpose is to engage in protest.
While some may say that the opinion, rooted in the First Amendment, protected those seeking abortions, others note that the court made clear it was bound to apply a Supreme Court case that was “materially identical” to the case at hand.
“In fact, the opinion suggests that if she were presented with the same issue as a Supreme Court justice, she would rule the other way,” Krasnoff added.
It’s something Barrett’s supporters reject.
“Since 1973 Democrats have been scaring American voters that every Republican Supreme Court nominee would overturn Roe v. Wade, and here we are nearly 50 years later and Roe v. Wade is still intact,” said Mike Davis, president of the Article III Project, a group that supports Trump’s nominees.
“Judge Barrett, someone who is clearly pro-life, has also clearly demonstrated on her three years on the 7th Circuit that she can separate her personal views from her judicial decision making,” he said.
At Notre Dame
A Notre Dame Magazine article from 2013 detailed a “Professors for Lunch” lecture series that featured a talk by Barrett. The article said she “spoke both to her own conviction that life begins at conception” and to the ” ‘high price of pregnancy’ and ‘burdens of parenthood’ that especially confront women.”
According to the article, “she asked her audience whether the clash of convictions inherent in the abortion debate is better resolved democratically.”
Such a line of reasoning evokes Scalia’s jurisprudence. He thought a judge should interpret a text as people would have understood that text at the time it was ratified. As Barrett said in 2016: “Justice Scalia resisted the notion that the Supreme Court should be in the business of imposing its views of social mores on the American people.”
In 2012 Scalia told CNN what he thought about Roe: “My view is regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad, regardless of how you come out on that, my only point is the Constitution does not say anything about it. It leaves it up to democratic choice.”
Barrett was also a member of the Notre Dame chapter of a club called University Faculty for Life. The group wrote a resolution in 2016, when Barrett was a member, noting that it sought to “promote the truth” that “every human being, from the moment of conception and until natural death, must be cherished and protected, and must never be intentionally killed.” As such it wrote to oppose Notre Dame’s decision to award a medal to then-Vice President Joe Biden.
“Mr. Biden has for decades conspicuously rejected Church teaching about life,” the resolution read. “He has rejected it repeatedly and consistently in the context of abortion, where (he has been quoted as saying) he would not want to ‘impose’ this teaching upon a woman and her doctor.”
CORRECTION: This story has been updated to correct the timing of Trump’s comments about Barrett’s position on abortion.