This article is the first entry in a case law symposium from Supreme Court Candidate Amy Coney Barrett.
As a presidential candidate in 2016, Donald Trump promised to appoint "pro-life" judges. As a result, he told Fox News host Chris Wallace that the Supreme Court would do Roe v. "Automatically" overthrow Wade, the landmark 1973 decision that established the right to abortion. Senators up at this week's confirmation hearings for Judge Amy Coney Barrett, Trump's candidate to fill the Supreme Court post created by the death of Judge Ruth Bader Ginsburg, who was one of the most trusted liberal voices in the court for nearly three decades They spend a lot of time on both sides focusing on the candidate's views on the abortion.
There seems little doubt that Barrett is personally against abortion. Her record as a judge suggests she would likely vote in favor of complying with state laws making it harder for women to get an abortion, but it's harder to predict whether she would vote to overthrow Roe altogether – and the hearings haven't much that is new has shed light on this question.
Unlike other Supreme Court candidates in the past, Barrett wasn't shy about speaking out in public about her personal opposition to abortion. The Guardian reported that Barrett's name was on a two-page ad sponsored by a local anti-abortion group condemning Roe in the local South Bend, Indiana newspaper in 2006. One side of the ad featured a quote from the late Judge Byron White described the Roe court's decision as "the exercise of brute judicial power". "It is time to put an end to the barbaric legacy of Roe v. Wade and restore laws that protect the lives of unborn children," reads the advertising copy. Over 1,000 names are listed on the opposite side of the ad, including Barrett and her husband, under a quote identifying them as local citizens who “oppose abortion on demand and defend the right to life from conception to natural death ". "Please keep praying to end the abortion," pleaded the ad.
On the questionnaire accompanying her 2017 hearing for confirmation as a judge on the U.S. Court of Appeals for the 7th Circuit, Barrett stated that she was a law professor at Notre Dame on the University Faculty for Life, an organization on their website stated that it is "trying to promote the prolife cause in Notre Dame."
During her time at Notre Dame, Barrett signed two letters that also indicate a denial of abortion. The first was an April 2012 letter concerning the Obama administration's placement under the birth control mandate of the Affordable Care Act. Religious employers turned down the mandate on the grounds that providing their workers with health insurance that covers some types of contraception would effectively make them complicit in abortion. To address these concerns, the Obama administration offered shelter to religious institutions that would allow them to opt out by filling out a form. The letter condemned the placement as "no compromise" and found that the original mandate opposition arose because the mandate required religious employers to "take out insurance that covers services" – such as "anti-abortion drugs , Sterilization and Contraception ”which they“ consider extremely immoral and unjust ”. On the questionnaire presented to the Senate Judiciary Committee in connection with her appointment to the Supreme Court, Barrett stated that she signed the letter as a "faculty member of a religious institution" – which at least implies that she may not fully agree with the views expressed in the letter, yet signed into the letter as part of their work. However, the letter itself makes it clear above the signature pad that the affiliations of the people who signed the letter were given “for identification purposes only”.
Barrett also signed a 2015 letter from a group of prominent Catholic women to Catholic bishops. The women wrote that they "testify that the teachings of the Church" – including the "dignity of the human person and the worth of human life from conception to natural death" – "provide a safe guide to the Christian life".
A judge's personal feelings about an issue, even if it is as controversial as abortion, should not reflect how she will vote on a legal issue related to that issue. During her hearing to confirm her position in the appeals court, Barrett told Senators that it was never appropriate for judges to impose their personal beliefs on the law – and she repeated that point in this week's hearings. During her three years on the 7th Circuit, Barrett did not participate directly in contesting any laws regulating or restricting abortion. But when other 7th Circle justices found such laws unconstitutional, she voted for the entire appeals court to review those decisions, which at least suggests that she agreed with the state and complied with the law.
Barrett's first such vote came in 2018 when an Indiana law was challenged that required fetal remains to be cremated or buried after an abortion. The law would likely make abortions more expensive, although it is not clear by how much. After a three-judge panel of the 7th Circle crushed the law, the state asked the entire appeals court to review the decision. The court of law denied the state's request, but five judges, including Barrett, voted for the court to reconsider the case.
Barrett joined in a written objection from Judge Frank Easterbrook. Easterbrook focused on a separate provision of Indiana law that had also been invalidated but was not up for trial in court. It banned abortions based on the race, sex, or disability of the fetus – for example, if the fetus was diagnosed with Down syndrome. Easterbrook expressed skepticism about whether the constitution forbids such laws, which he called the prevention of "eugenics". "None of the court's abortion rulings," Easterbrook said, "states that states are unable to prevent abortions aimed at determining the sex, race, and other characteristics of children." The appeals court should not, Easterbrook warned, "submit to judges decisions they did not make about problems they did not face."
Indiana went to the Supreme Court and asked the judges to weigh the constitutionality of both provisions of the Abortion Act. After examining the state's request for review at 15 consecutive meetings, the Supreme Court overturned the lower court's decision on the disposal of fetal remains. With a 7-2 vote, the judges decided that the law was sufficiently related to the state's interest in the proper disposal of fetal remains to survive a constitutional challenge.
The judges refused to consider the constitutionality of the provision prohibiting abortion based on the race, sex or disability of the fetus, instead leaving the lower court decision in effect, which put the law down. In an unsigned opinion, the court stressed that its disposition on the issue expressed "no view of the merits" of the problem; Instead, the court found that the decision to refuse review was consistent with the court's normal practice of choosing not to include legal issues until more appellate courts have examined them.
Judge Clarence Thomas filed a statement claiming that Easterbrook's dissent was "correct". "Whatever Else Could Be Said" Planned Parenthood v. Casey, the 1992 Supreme Court ruling affirming the right to terminate a pregnancy before the fetus is viable, wrote Thomas, "It did not determine whether the constitution required states to allow eugenic abortions." "And although the Supreme Court refused to" deal with these issues today, "continued Thomas," we cannot avoid them forever. " "Establishing a constitutional right to abortion based solely on the race, sex or disability of an unborn child," concluded Thomas, "would constitutionalize the views of the eugenics movement of the 20th century."
In 2019, Barrett also voted in favor of the full re-run of a 7th Circle case, which includes an Indiana law requiring minors to notify their parents before receiving an abortion. The lower court had put the law down and declared it unconstitutional. Barrett joined in a brief statement from Judge Michael Kanne, arguing that the case concerned an important issue of state rights – specifically, when can federal courts prevent a state from enforcing a law that has not yet come into effect? The dissent called the question of when abortion restrictions can be challenged in court prior to their implementation as “unresolved” and suggested that “this issue should be decided by our full court. Preventing the entry into force of a state law is an extremely serious legal act in our federal structure. "
Indiana appealed the 7th Circuit's decision invalidating the bill to the Supreme Court, which sent the case back to the lower court in July 2020 for another look at the court's latest opinion in June Medical Services throw against Russo. In June, Medical, a tightly-knit Supreme Court, enacted Louisiana law requiring doctors who perform abortions to have the right to admit patients to nearby hospitals. However, Chief Justice John Roberts, who voted for the repeal of the law, has issued a separate opinion setting out a more lenient test to review abortion restrictions. The Supreme Court order in Indiana therefore at least created the possibility that the law could ultimately be found constitutional if the appeal was returned to the lower courts.
Barrett served on a three-judge panel on a case that involved abortion clinics and the first amendment – specifically a challenge to a Chicago ordinance preventing abortion protestors from being within eight feet of someone approaching an abortion clinic or leave it. The ordinance was based on a Colorado ordinance that the Supreme Court upheld in 2000. However, the challengers argued in the appeals court that the ordinance was unconstitutional, citing two recent Supreme Court rulings – one with abortion clinics and one with traffic signs. Barrett joined in a statement from Judge Diane Sykes who rejected the challengers' request. The statement agreed that the recent cases had "profoundly shaken" the very foundation of the Colorado case. Sykes stressed, however, that only the Supreme Court can override this case, which is "under direct control" and "remains binding on us". "Only the Supreme Court," Sykes made clear, "can bring harmony to these precedents."
As Sykes' point of view stated, an appeals court judge is bound by both the 7th Circle and, more importantly, the Supreme Court judgments. Only the Supreme Court can overturn its own decisions. But if it were upheld as justice, Barrett would not face the same restrictions. During their 2017 confirmation hearing, Barrett assured Senators that Roe "is clearly binding on all appeals courts," but declined to say whether Roe was ruled correctly. And before the Judiciary Committee this week, Barrett again declined to express a substantive opinion on Roe. Speaking to Senator Amy Klobuchar (D-Minn.) Barrett said, however, that she does not see Roe in the limited category of so-called “super precedents” – cases so well established that “No political actors, no people push seriously on overcoming them. "
"I answer a lot of questions about Roe, which I believe suggests Roe doesn't fall into that category," Barrett said Tuesday. "And scientists across the spectrum say that doesn't mean Roe should be overridden. Descriptively, however, it means that not everyone has accepted it."
This post was originally published on Howe on the Court.
Symposium: Barrett's records indicate willingness to uphold abortion restrictions.
SCOTUSblog (October 14, 2020, 1:26 p.m.),