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President Donald Trump has tapped Amy Coney Barrett, a judge on the U.S. 7th Circuit Court of Appeals, to replace Justice Ruth Bader Ginsburg, who died last week and left a vacancy on the Supreme Court just weeks before the 2020 election.
The deal is far from done: The 48-year-old jurist still has to undergo what’s sure to be a grueling confirmation hearing, and Democrats have vowed to try to stop her nomination from seeing a vote on the Senate floor—the same way Republicans successfully halted President Barack Obama’s nomination of Merrick Garland back in 2016.
But so far, Republicans look like they have the votes to propel Barrett up to the nation’s highest court, and they’ve said they’ll do it before the election. Supporters of abortion rights are already alarmed at her record, which suggests that Trump will fulfill his unprecedented promise to only appoint “pro-life” justices to the Supreme Court. If Barrett’s nomination is successful, she will also likely solidify conservatives’ majority on the Court for decades to come.
Over time, that conservative majority could have the power to rewrite countless Americans’ rights and protections. But in the more immediate future, Barrett could be asked to weigh in on several cases where Ginsburg would have lent power to the liberals, such as in cases involving the Affordable Care Act, abortion access, or challenges to the 2020 election.
Abortion
Barrett’s record is relatively thin, given that she only became a judge on the 7th Circuit three years ago. But she’s left enough breadcrumbs to her beliefs that she’s become a favorite Supreme Court pick among conservatives—particularly for her views on abortion. Overturning Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide, is the anti-abortion movement’s North Star.
A devout Catholic, mother of seven, and a former clerk for conservative icon Justice Antonin Scalia, Barrett hasn’t been shy about her personal feelings regarding abortion. In a 1998 article she co-authored about the role of Catholic judges handling death penalty cases, Barrett called abortion “always immoral” under the Catholic Church’s teachings.
In 2013, while a law professor at Notre Dame, Barrett gave a presentation where she claimed that life begins at conception, according to Notre Dame magazine. She reiterated that belief in 2015, when she signed onto a letter—addressed to a group of Catholic bishops—that affirmed the Catholic teaching “on the dignity of the human person and the value of human life from conception to natural death.”
(That letter also emphasized the supposed importance of “the significance of sexual difference and the complementarity of men and women” as well as “marriage and family founded on the indissoluble commitment of a man and a woman,” in case anyone’s looking for clues about Barrett’s feelings about LGBTQ+ rights.)
Barrett’s own beliefs about abortion may not color her rulings as a judge. But her legal writings and record as a judge on the 7th Circuit suggest that Barrett is both open to overturning precedential cases and friendly to considering state-level abortion restrictions. Such restrictions can chip away at access to abortion and curtail the right promised by Roe; the anti-abortion movement has long prioritized enacting them.
In June 2018, Barrett ruled to consider a case called Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner of the Indiana State Department of Health. The case dealt with two abortion restrictions out of Indiana. The first restriction, the only one that the 7th Circuit was asked to weigh in on, required that fetal tissue from an abortion be buried or cremated. The second restriction banned someone from getting an abortion if they wanted one based on a fetal disability, or because of the fetus’ race, national origin, or ancestry.
The 7th Circuit declined to review the case, a decision Barrett dissented from. And even though Barrett had not been asked to examine that second restriction, the dissent she joined did so anyway. It dubbed that restriction a “eugenics statute.”
Had that restriction gone into effect, the law would have banned people from getting abortions even before a fetus was viable. It would also, abortion rights supporters say, have sent Indiana down a slippery slope where legislators could tell women that their reasons for getting an abortion wasn’t good enough.
In October 2019, Barrett once again ruled to review a case out of Indiana. This one, Planned Parenthood of Indiana and Kentucky, Inc. v. Box, concerned a law that let a judge notify a minor’s parents if she wanted an abortion—even if that minor had obtained a court’s permission to get an abortion without her parents’ consent. The full 7th Circuit court decided against reviewing the law.
The dissent Barrett joined portrayed the case as a matter of federal government overreach.
"Preventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure," the dissent read.
There are signs that Barrett won’t consider overturning Roe. In a 2016 talk at Jacksonville University, Barrett suggested that she doesn’t believe that the case will fall.
“I don’t think the core case—Roe’s core holding that women have a right to abortion—I don’t think that will change,” she said at the time. She added, “States have imposed regulations on abortion clinics, and I think the question is, ‘How much freedom the court is willing to let states have in regulating abortion?’”
This talk was, of course, given before Trump’s Supreme Court nominations tilted the court to the right, and before Barrett was put in a position where she could potentially change Roe.
Obamacare
Barrett has also criticized parts of the Affordable Care Act, which is set to be argued over at the Supreme Court—again—after the November election. In 2012, Barrett signed onto a statement criticizing an Obama administration policy related to the Affordable Care Act mandate that employers cover their workers’ contraception.
“The simple fact is that the Obama administration is compelling religious people and institutions who are employers to purchase a health insurance contract that provides abortion-inducing drugs, contraception, and sterilization,” the statement read. “This is a grave violation of religious freedom and cannot stand.”
The Affordable Care Act, to be clear, does not require that employers cover “abortion-inducing drugs.” Instead, it can cover emergency contraception, often known as Plan B or the morning-after pill. Rather than terminating an existing pregnancy, these pills primarily work by inhibiting ovulation. Anti-abortion activists often conflate the morning-after pill and an abortion.
In a 2017 book review, Barrett seemed to take on the Affordable Care Act more broadly, when she discussed a 2012 Supreme Court case known as National Federation of Independent Business v. Sebelius, which addressed the ACA’s constitutionality. She suggested that the majority in that case wrongly preserved the ACA out of justices’ sense of “judicial restraint,” a concept that basically holds that justices should try to avoid legislating from the bench.
“For Justice Scalia and those who share his commitment to uphold text, the measure of a court is its fair-minded application of the rule of law, which means going where the law leads,” Barrett wrote. (Scalia, in that case, was in the minority.) “By this measure, it is illegitimate for the Court to distort either the Constitution or a statute to achieve what it deems a preferable result.”
Scalia was a legendary devotee of “originalism,” which typically holds that judges should rule based on the historical meaning of the Constitution at the time it was written. Barrett has also aligned herself with originalism—which suggests that she would follow her interpretation of the Constitution over the will of another, elected branch of government.
This could spell disaster for Roe, if Barrett believes it’s not rooted in the Constitution. Even Ginsburg famously believed that Roe was decided on shaky legal ground, as it traces the right to abortion through the right to privacy. (That right isn’t expressly outlined in the Constitution but rather triangulated through a penumbra of other constitutional protections.)
Given the neverending controversy behind Roe, as well as Supreme Court nominees’ reluctance to offer up their views on past Court decisions in confirmation hearings, senators have taken to asking those nominees about their commitment to “stare decisis.” That doctrine holds that courts should, essentially, follow precedent; in other words, even if a nominee doesn’t agree with Roe on moral or legal grounds, they may still uphold it out of a sense of its institutional importance.
Although Barrett has written about the value of “stare decisis,” she has also defended a justice’s ability to overturn precedent. In a 2013 law journal article, she wrote, “I tend to agree with those who say that a justice's duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.”
In a statement Friday night, after news of Trump’s Supreme Court nominee leaked, Stephanie Schriock, the president of EMILY’s List, which champions abortion rights-supporting women running for office, slammed Barrett as an “extreme nominee.”
“President Trump and his Republican allies have made clear that they want the Supreme Court to overturn Roe v. Wade, and strike down the Affordable Care Act and many crucial civil rights,” Schriock said. “By nominating Judge Amy Coney Barrett, they will move one step closer to meeting those goals, and one step further away from voters, who support reproductive freedom, access to health care, and protecting our rights. Barrett has staked out extreme positions on these issues that would put all of these things at risk.”
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