Politics

Four things we’ve learned about how Amy Coney Barrett might view abortion cases

After four days, the Senate confirmation hearings for Amy Coney Barrett are over and her appointment to the Supreme Court is all but guaranteed. Barrett’s addition will shift the high court to a 6-3 conservative majority, casting uncertainty on the future of abortion rights and Roe v. Wade.

Like many of the Supreme Court nominees that came before her, Barrett offered senators little insight into how she might view the landmark decision that legalized abortion nationwide. But after nearly 20 hours of questioning, senators were left with a few clues about how Barrett, a former law clerk and mentee of the staunchly conservative Justice Antonin Scalia, will approach cases involving abortion rights.

Here are four things we learned about Barrett’s view on abortion and Roe v. Wade during this week’s Senate confirmation hearings:

1. Barrett confirmed signing her name to advertisements that opposed abortion

During this week’s hearing, Barrett acknowledged she signed two anti-abortion rights advertisements that called for reversal of Roe v. Wade. In a two-page advertisement published in 2006, Barrett and her husband’s signatures appeared on a page that said, “We… oppose abortion on demand and defend the right to life from fertilization to natural death.” The opposite page, which Barrett this week said she hadn’t seen prior to its publication, said, “It’s time to put an end to the barbaric legacy of Roe v. Wade.”

This week, Barrett told Senators that she signed the ad while leaving church, at a “table set up for people on their way out of Mass to sign a statement… validating their commitment to the position of the Catholic Church on life issues.”

Additionally, as a professor at Notre Dame Law School in 2013, Barrett included her signature in a paid ad that referred to Roe v. Wade as “infamous,” and said, “We faculty and staff at the University of Notre Dame reaffirm our full support for our University’s commitment to the right to life, we renew our call for the unborn to be protected in law…”

“I think that statement is an affirmation of life,” Barrett told senators this week, explaining her participation. “It’s no more than the expression of a pro-life view.”

The ad was co-sponsored by a group Barrett belonged to: University Faculty for Life, an organization that describes itself as “committed to the legal and societal recognition of the value of all human life.” 

Both advertisements were originally omitted in Barrett’s paperwork submitted to the Senate Judiciary Committee and were included later after being uncovered by news outlets. Barrett said the omission was an oversight.

2. Barrett declined to answer whether Roe v. Wade was correctly decided

Invoking the “Ginsburg Rule” — no hints, no previews, no forecasts — Barrett declined to answer the many questions senators posed to her about Roe v. Wade, explaining to California Senator Dianne Feinstein, “If I express a view on a precedent one way or another, whether I say I love it or I hate it, it signals to litigants that I might tilt one way or another on a pending case.”

Every would-be Supreme Court justice is asked about Roe during their Senate confirmation hearings, and every would-be justice has avoided a direct answer. Most recently in 2018, Brett Kavanaugh said, “One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years.”

But Barrett offered even less when Senator Richard Blumenthal directly asked, “Are you willing to say Roe was correctly decided?”

“As I’ve said to others, it’s inconsistent with the duties of a sitting judge to take positions on cases that the court has decided in the past,” Barrett said.

President Trump has given senators — and American voters — ample reason to believe that his Supreme Court picks would be in favor of overturning Roe v. Wade. On the campaign trail in 2016, then-candidate Donald Trump said that if elected, Roe v. Wade would be “automatically” overturned because he would nominate “pro-life” justices.

If confirmed to the Supreme Court, Barrett will almost certainly hear a case that challenges the legal protections surrounding abortion services. Today, 17 cases related to abortion are one step away from the Supreme Court and two — including a 15-week abortion ban from Mississippi, which challenges the core holding of Roe — could be taken up as early as its next term. Dozens more cases, including the handful of last year’s six-week abortion bans, are making their way through the judicial system.

Barrett also declined to answer whether the court correctly decided Griswold v. Connecticut, the 1965 Supreme Court opinion that established a married couple’s right to privacy and right to use contraceptives and a decision that served as the bedrock for the court’s opinion in Roe v. Wade. In a back and forth with Delaware Senator Chris Coons, Barrett dodged his question asking whether it was properly decided, and instead said the landmark decision is “very unlikely to be challenged.”

“It seems unthinkable that any legislature would pass such a law” taking away the right to buy or use contraception, she said.

But just this year, the Supreme Court issued an opinion against birth control access, ruling that the Trump administration has the right to allow employers to deny contraceptive coverage for religious reasons or a “sincerely held moral” conviction.

Refusing questions on Griswold is a departure from other justices, including current Justices Samuel Alito, Brett Kavanaugh, Elena Kagan and Chief Justice John Roberts, who all said during their confirmation hearings that the landmark case was correctly decided. When asked about Griswold during his 2005 hearing, Roberts said, “I agree with the Griswold court’s conclusion that marital privacy extends to contraception and availability of that.” 

3. Barrett does not believe precedents protecting abortion rights are settled law

While Barrett believes that some Supreme Court precedents aren’t up for debate, she told senators this week that Roe v. Wade might be. Barrett referred to the concept of “super precedents,” a way to describe “cases that are so well settled that no political actors and no people seriously push for their overruling.”

Barrett said that only a handful of the Supreme Court’s most significant decisions would qualify, including Brown v. Board of Education and Loving v. Virginia. Roe v. Wade wasn’t included.

“I’m answering a lot of questions about Roe,” Barrett told Minnesota Senator Amy Klobuchar, “which I think indicates that Roe doesn’t fall in that category.”

By Barrett’s definition of “super precedent,” Roe would not qualify given that, as Barrett told senators this week, “calls for its overruling have never ceased.” Indeed, state legislatures have passed hundreds of laws that challenge the core holding not only of Roe, but other Supreme Court precedents protecting abortion access, including Planned Parenthood v. Casey and Whole Woman’s Health v. Hellerstedt.

4. She’s ruled against anti-abortion rights groups, but disagreed with the precedent she followed

Multiple Republican senators pointed to a February 2019 opinion where Barrett ruled against anti-abortion rights protesters to demonstrate Barrett’s willingness to follow precedent, even for cases in which she may personally disagree. In that case, Price v. Chicago, Barrett co-wrote an opinion upholding a city ordinance that prohibited anti-abortion rights groups from coming within a 50-foot radius from the entrance of an abortion clinic and closer than eight feet to any other person “for the purpose of passing a leaflet or handbill to displaying a sign to or engaging in oral protest education or counseling with such other person.”

In their opinion, Barrett, joined by two other Circuit Court judges, ruled Chicago’s ordinance was constitutional and protected by the Supreme Court’s precedent in Hill v. Colorado, a 2000 decision upholding a similar so-called “buffer zone.”

But those senators didn’t mention that Barrett spent much of the 24-page opinion disagreeing with the precedent set in Hill, writing that the decision “is incompatible with current First Amendment doctrine.” Though Barrett and her colleagues allowed Chicago’s ordinance to stay in place, they recommended anti-abortion rights groups “seek relief in the High Court.”

Hawaii Senator Mazie Hirono scrutinized Barrett’s language in the opinion and said it was indicative of Barrett’s willingness to revisit precedent.

“Judge Barrett, you said judges have to wait for cases and can’t have an agenda, but here you have examples of justices who are sending out signals. ‘Bring these cases to us because we want to take a look at precedent,'” Hirono said.

Per Barrett’s recommendation, after anti-abortion rights groups lost, they appealed to the Supreme Court in 2019. In July 2020, the court declined to hear the case.

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