The reported plan to nominate Judge Amy Coney Barrett to the Supreme Court has at once alarmed liberals and exhilarated social conservatives, both of whom believe that she would be likely to support restrictions on abortion rights and could even vote to overturn Roe v. Wade, the decision legalizing the procedure nationwide.
President Donald Trump is expected on Saturday to nominate Barrett, a federal judge on the U.S. Court of Appeals for the 7th Circuit and a law professor at the University of Notre Dame, after the death last week of Justice Ruth Bader Ginsburg. If confirmed, she would replace one of the court’s most consistent liberal voices, dramatically shifting the court’s center of gravity further to the right. She could also have a long tenure: At 48, Barrett would be the youngest justice on the bench.
Abortion rights advocates are terrified about what that means. Barrett is known for her conservative religious views, and, in recent years, her name has risen to the top of anti-abortion groups’ wishlists of prospective Supreme Court justices. A devout Catholic, Barrett has seven children, including two who are adopted, and has spoken openly about her personal belief that life begins at conception.
It’s impossible to know for certain how any justice’s tenure will go. There are several examples of judges viewed as reliably anti-abortion making unexpected rulings, including this year, when John Roberts sided with his liberal colleagues to strike down a Louisiana abortion law. But many clues point to Barrett’s hostility to Roe v. Wade. And if she makes it to the Supreme Court, where abortion issues come up time and time again, she’ll have considerable power to shape the future of reproductive rights for the entire nation.
A bruising confirmation battle is expected with abortion rights at its center. Her nomination comes on the heels of a historic surge in bold abortion bans passed in state legislatures across the country.
Barrett’s Record On Reproductive Rights
Barrett has been a federal judge for only three years, so much of what can be gleaned about her views on reproductive rights comes from her time in academia.
From 2010 to 2016, she was a member of Notre Dame’s Faculty for Life group, which was founded to “promote research, dialogue and publication by faculty who respect the value of human life from conception to natural death.”
During that time, Barrett signed a letter of protest to the Obama administration about the birth control mandate in the Affordable Care Act that requires most private health insurance plans to cover birth control without a copay. The statement criticized the workaround offered to religious employers, saying it “changes nothing of moral substance and fails to remove the assault on individual liberty and the rights of conscience which gave rise to the controversy.” The birth control mandate was back at the Supreme Court as recently as last term.
Barrett also signed onto a letter to Catholic bishops giving witness to the “value of human life from conception to natural death.”
She told students in 2013 that it was unlikely that Roe would be overturned and expressed her opinion that supporting poor, single mothers was the best way to reduce the number of abortions in the U.S. At another talk, at Jacksonville University in 2016, she repeated that the central holding of Roe ― that women have the right to an abortion ― was unlikely to change.
“I think the question is how much freedom the court is willing to let states have in regulating abortion,” she said.
Matt Cashore/Notre Dame University via REUTERS.
As a federal judge, Barrett has not ruled directly on abortion cases. But she has twice signaled her opposition to rulings that struck down abortion laws.
Barrett’s liberal critics worry about the extent to which her religious beliefs may influence her legal thinking. During her 2017 confirmation hearing, she was asked if she believed abortion was always immoral. She said that was the Catholic church’s teaching but that if she was confirmed, her views would have no bearing on the discharge of her duties as a judge. Her confirmation would bring the court’s religious affiliations to six Catholics, an Episcopal who was raised Catholic, and two Jews.
Her affiliation with a conservative Christian community, People of Praise, has also come under renewed scrutiny.
What Could Come Next
Though Barrett has a short record on reproductive rights, it is clear where she stands, said Jill Adams, executive director of If/When/How: Lawyering for Reproductive Justice, which provides legal assistance to women seeking abortions.
“If Amy Coney Barrett is appointed, it’s quite possible, even probable, that the anti-abortion majority on the Supreme Court will seize the next abortion rights case to overturn Roe or obliterate it to the point that states have carte blanche to restrict the right however they choose,” she said. “She shares the court majority’s regressive agenda aimed at unraveling a host of hard-won civil rights, including reproductive rights.”
Michele Goodwin, a law professor at the University of California, Irvine, noted that in the past, Republican presidents have nominated justices who respected reproductive rights. Roe v. Wade, for example, was a 7-2 decision written by Justice Harry Blackmun, a President Richard Nixon appointee.
But these times are different.
“Trump is a president who, before he was elected, made it very clear that he would only nominate judges who would be anti-abortion and judges who would work to dismantle Roe v. Wade,” Goodwin said. “Are reproductive health, rights and justice in danger, specifically with contraception and abortion? Yes.”
Though the religious right is currently enthusiastic about the possibility of Barrett joining the court, Daniel Williams, a historian at the University of West Georgia who wrote a book on the anti-abortion movement, cautioned that they have misjudged judges’ leanings in the past.
“There was a lot of excitement about Anthony Kennedy among pro-life circles,” he said. “Then Justice Kennedy ended up writing the ruling in Planned Parenthood v. Casey that largely reaffirmed the basic tenets of Roe. That was a great disappointment to them.”
Beyond her strong religious convictions, one of the reasons Barrett is favored by anti-abortion advocates is precisely because of her gender, Williams explained. Many activists who want Roe to be overturned do not want the decision to be made by male justices only. The optics are bad.
“The prospect of having the decision written by a woman is something that pro-life advocates, while not considering absolutely essential, have desired,” Williams said.
The fact that Barrett opposes abortion in her personal life does not necessarily mean that she will impose those views as a justice, added Mary Ziegler, a professor at Florida State University and author of “Abortion and the Law in America: Roe v. Wade to the Present.”
“But clearly it’s the reason that she’s been so energizing to social conservatives,” she said. “They assume that she will vote to overturn Roe.”