Symposium: Barrett’s record suggests willingness to uphold abortion restrictions

This article is the first entry in a symposium on the jurisprudence of Supreme Court nominee Amy Coney Barrett.

As a presidential candidate in 2016, Donald Trump pledged to appoint “pro-life” justices. As a result, he told Fox News anchor Chris Wallace, the Supreme Court would “automatically” overturn Roe v. Wade, the landmark 1973 decision establishing the right to obtain an abortion. At this ongoing week’s confirmation hearings for Judge Amy Coney Barrett, Trump’s nominee to fill the vacancy on the Supreme Court created by the death of Justice Ruth Bader Ginsburg, who for nearly three decades was one of the most reliably liberal votes on the court, senators on both sides are spending considerable time focusing on the nominee’s views on abortion.

There appears to be little doubt that Barrett is personally opposed to abortion. Her record as a judge suggests that she would likely vote to uphold state laws that make it more difficult for women to obtain an abortion, but it is harder to predict whether she would vote to overturn Roe altogether – and the hearings have not shed much new light on this question.

Unlike other Supreme Court nominees in the past, Barrett has not been shy about publicly voicing her personal opposition to abortion. As The Guardian reported, Barrett’s name was attached to a two-page advertisement, sponsored by a local anti-abortion group, condemning Roe in the local South Bend, Indiana, newspaper in 2006. On one page, the ad displayed a quote from the late Justice Byron White, calling the court’s decision in Roe an “exercise of raw judicial power.” “It’s time to put an end to the barbaric legacy of Roe v. Wade and restore laws that protect the lives of unborn children,” the text of the advertisement argued. The opposite page of the ad listed over 1,000 names, including Barrett and her husband, below a quote identifying them as local citizens who “oppose abortion on demand and defend the right to life from fertilization to natural death.” “Please continue to pray to end abortion,” the ad implored.

On the questionnaire that accompanied her 2017 hearing for her confirmation as a judge on the U.S. Court of Appeals for the 7th Circuit, Barrett indicated that as a law professor at Notre Dame she was a member of University Faculty for Life, an organization whose website indicates that it “seeks to promote the prolife cause at Notre Dame.”

During her time at Notre Dame, Barrett signed two letters that also suggest an opposition to abortion. The first was an April 2012 letter regarding the accommodation offered by the Obama administration to the Affordable Care Act’s birth-control mandate. Religious employers objected to the mandate, on the ground that providing their female employees with health insurance that covered some types of contraceptives would effectively make them complicit in abortion. In an effort to address these concerns, the Obama administration offered an accommodation for religious institutions, allowing them to opt out by filling out a form. The letter condemned the accommodation as “no compromise,” and it noted that the original opposition to the mandate had arisen because the mandate would require religious employers to “provide insurance that covered services” – such as “abortion-inducing drugs, sterilization, and contraception” that they “regard as gravely immoral and unjust.” On the questionnaire submitted to the Senate Judiciary Committee in connection with her nomination to the Supreme Court, Barrett indicated that she had signed the letter as a “faculty member of a religious institution” – at least implying that she might not fully agree with the views expressed in the letter, but nonetheless signed on to the letter as part of her job. However, the letter itself makes clear, above the signature block, that the affiliations of the individuals who signed the letter were provided “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 gave “witness that the Church’s teachings” — including on the “dignity of the human person and the value of human life from conception to natural death” — “provide a sure guide to the Christian life.”

A judge’s personal feelings about an issue, even one as controversial as abortion, should not reflect how she will vote on a legal question relating to that issue. Indeed, during her confirmation hearing for her position on the court of appeals, Barrett told senators that it is never appropriate for judges to impose their personal convictions on the law – and she has reiterated that point in the hearings this week. During her three years on the 7th Circuit, Barrett has not participated directly in challenges to laws regulating or restricting abortions. But when other judges on the 7th Circuit have found such laws unconstitutional, she voted to have the full court of appeals reconsider those decisions, which at least suggests that she was sympathetic to the state and would have upheld the laws.

Barrett’s first such vote came in 2018, in a challenge to an Indiana law requiring 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 Circuit struck the law down, the state asked the full court of appeals to review that decision. The full court rejected the state’s request, but five judges, including Barrett, voted in favor of the court reconsidering the case.

Barrett joined a written dissent by Judge Frank Easterbrook. Easterbrook focused on a separate provision of the Indiana law that had also been invalidated, but which was not at issue before the court, that banned abortions based on the race, sex or disability of the fetus – for example, if the fetus has been diagnosed with Down syndrome. Easterbrook expressed skepticism about whether the Constitution prohibits such laws, which he described as preventing “eugenics.” “None of the Court’s abortion decisions,” Easterbrook contended, “holds that states are powerless to prevent abortions designed to chose the sex, race, and other attributes of children.” The court of appeals should not, Easterbrook warned, “impute to the Justices decisions they have not made about problems they have not faced.”

Indiana went to the Supreme Court, asking the justices to weigh in on the constitutionality of both provisions of the abortion law. After considering the state’s petition for review at 15 consecutive conferences, the Supreme Court threw out the lower court’s ruling on the disposal of fetal remains. By a vote of 7-2, the justices ruled that the law was sufficiently related to the state’s interest in the proper disposal of fetal remains to survive a constitutional challenge.

The justices declined to weigh in on the constitutionality of the provision banning abortions based on the race, gender or disability of the fetus, instead leaving in place the lower court’s ruling that struck down the law. In an unsigned opinion, the court emphasized that its disposition of this issue “expresses no view of the merits” of the issue; instead, the court observed, the decision to deny review was consistent with the court’s normal practice of opting not to take up legal questions until more courts of appeals have considered them.

Justice Clarence Thomas filed a statement in which he contended that Easterbrook’s dissent was “correct.” “Whatever else might be said about” Planned Parenthood v. Casey, the Supreme Court’s 1992 decision reaffirming the right to terminate a pregnancy before the fetus becomes viable, Thomas wrote, “it did not decide whether the Constitution requires States to allow eugenic abortions.” And although the Supreme Court had declined to “wade into these issues today,” Thomas continued, “we cannot avoid them forever.” “Enshrining a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child,” Thomas concluded, “would constitutionalize the views of the 20th-century eugenics movement.”

In 2019, Barrett also voted in favor of the full 7th Circuit rehearing a case involving an Indiana law that would require minors to notify their parents before obtaining an abortion. The lower court had struck down the law, deeming it unconstitutional. Barrett joined a brief opinion by Judge Michael Kanne arguing that the case involved an important issue of states’ rights – specifically, when can federal courts bar a state from enforcing a law that has not yet gone into effect? Calling the question of when abortion restrictions can be challenged in court before they are implemented “unsettled,” the dissent suggested that “this issue should be decided by our full court. Preventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure.”

Indiana appealed the 7th Circuit’s decision invalidating the law to the Supreme Court, which in July 2020 sent the case back to the lower court for another look in light of the court’s recent opinion in June Medical Services v. Russo. In June Medical, a closely divided Supreme Court struck down a Louisiana law that required doctors who perform abortions to have the right to admit patients at nearby hospitals, but Chief Justice John Roberts – who voted to nullify the law – wrote a separate opinion that outlined a more lenient test for reviewing restrictions on abortion. The Supreme Court’s order in the Indiana case therefore created at least the possibility that the law could ultimately be found constitutional when the appeal returns to the lower courts.

Barrett was part of a three-judge panel in a case involving abortion clinics and the First Amendment – specifically, a challenge to a Chicago ordinance that bars abortion protesters from going within eight feet of someone who is approaching or leaving an abortion clinic. The ordinance was modeled on a Colorado ordinance that the Supreme Court upheld in 2000, but the challengers argued in the court of appeals that the ordinance was unconstitutional, pointing to two more recent Supreme Court decisions – one involving abortion clinics and one involving road signs. Barrett joined an opinion by Judge Diane Sykes that rejected the challengers’ plea. The opinion agreed that the more recent cases had “deeply shaken” the foundation of the Colorado case. But, Sykes emphasized, only the Supreme Court can overrule that case, which “directly controls” and “remains binding on us.” “Only the Supreme Court,” Sykes made clear, “can bring harmony to these precedents.”

As Sykes’ opinion explained, a judge on the court of appeals is bound by both the 7th Circuit’s rulings and, even more importantly, those of the Supreme Court; only the Supreme Court can overturn its own decisions. But if she were confirmed as a justice, Barrett would not face the same constraints. During her 2017 confirmation hearing, Barrett assured senators that Roe is “clearly binding on all courts of appeals,” but she declined to say whether Roe was correctly decided. And before the Judiciary Committee this week, Barrett again declined to express any substantive view on Roe. In an exchange with Sen. Amy Klobuchar (D-Minn.), however, Barrett did say that she does not consider Roe to be in the limited category of so-called “super precedents” – cases that are so well established that “no political actors and no people seriously push for their overruling.”

“I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall in that category,” Barrett said Tuesday. “And scholars across the spectrum say that doesn’t mean that Roe should be overruled. But descriptively, it does mean that it’s not a case that everyone has accepted.”

This post was originally published at Howe on the Court.