Judge Amy Coney Barrett spent three days during this week’s Supreme Court confirmation hearings declining to tell senators or the public where she stands on Roe v. Wade, the landmark 1973 ruling that protects the right to abortion. But Barrett didn’t necessarily need to dodge questions: Her stance on abortion is evident in her past work, in the anti-abortion groups that have boosted and funded her, and in comments from conservative politicians themselves.
“This is the first time in American history that we’ve nominated a woman who is unashamedly pro-life and embraces her faith without apology, and she is going to the court,” Sen. Lindsey Graham (R-S.C.), chairman of the Senate Judiciary Committee, said during the hearing on Wednesday.
Weeks away from a presidential election and in the middle of a pandemic that’s left millions of Americans in dire need of government assistance, Republicans are unashamedly rushing to confirm Barrett after Justice Ruth Bader Ginsburg’s death in September. Barrett’s nomination would cement the court’s conservative majority, possibly for a generation. And one major risk is what that could do to abortion access in the U.S. Currently there are 17 abortion cases one step away from heading to the Supreme Court, according to Planned Parenthood. The last two decisions on the issue were decided by one vote while Ginsburg was still alive.
Over the first few days of the hearings, Democrats tried to nail down Barrett’s abortion stance by asking if she thought Roe v. Wade was wrongly decided or if she agreed with the late Justice Antonin Scalia, arguably the most conservative justice in the court’s history and a justice for whom Barrett served as a clerk. But for the most part, like she did on a number of other questions, she obfuscated.
“I can’t pre-commit or say, ‘Yes, I’m going in with some agenda,’ because I’m not,” Barrett told Senate Judiciary Committee ranking member Dianne Feinstein (D-Calif.) in response to a question about her views on Roe v. Wade.
Crystal Good, a woman slated to discuss her abortion experience during Thursday’s hearing, said she’s upset at Barrett’s repeated refusal to say anything about the constitutional right to abortion. Good is a half-Black, half-white mother of three and child sexual abuse survivor from Appalachia in West Virginia who got an abortion at the age of 16.
“It’s clear that my story does not fit into her view of the world,” Good told HuffPost.
It’s clear that my story does not fit into her view of the world. Crystal Good, pro-abortion rights speaker for confirmation hearing
It’s not particularly unusual for nominees to try to avoid sharing their views because judges are supposed to be impartial by trade (Barrett repeatedly invoked a Ginsburg quote: “No hints, no previews, no forecasts”). But in this case, they were clear before she took the stand.
Barrett, who held an active role in the small Christian group People of Praise, has identified herself as an originalist, a judge who relies on the plain meaning of text and interprets the constitution as it was written at the time. Some Democrats worry that Barrett’s past judicial rulings, including one in which she said she does not believe Supreme Court precedents are sacrosanct, could threaten Roe v. Wade.
Two documents surfaced before the hearings that confirmed her personal opinion on reproductive rights. In 2006, Barrett signed her name to a newspaper ad created by an anti-abortion group which argued that “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.” In 2013, while she was a part of Notre Dame University’s Faculty for Life group, she signed her name in support of another anti-abortion ad to “renew our call for the unborn to be protected in law and welcomed in life.”
“Judge Barrett’s approach to constitutional interpretation, opinions as a federal appellate judge, and vitriolic public advocacy disparaging contraception, opposing abortion, and defending ‘the right to life from fertilization’ lay bare a deep disagreement with the established constitutional protections for reproductive rights,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement, adding that Barrett “has the most extreme record in opposition to reproductive rights” in the past 30 years.
To add to Barrett’s conservative track record, the 48-year-old was formerly a part of and recently vetted by The Federalist Society, a national organization of conservative lawyers. The organization maintains that it takes no official policy positions but has a long track record of supporting judges with anti-abortion, anti-LGBTQ rights and anti-voting rights records.
Before Trump announced Barrett’s nomination, Sen. Josh Hawley (R-Mo.) declared he would only vote in support of a nominee who has a written record proving they believe Roe v. Wade was wrongly decided. “I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided. By explicitly acknowledged, I mean on the record and before they were nominated,” Hawley told The Washington Post in July. He said a similar statement in an interview with the Los Angeles Times at the end of September.
Hawley has since said Barrett meets his litmus test and he will vote in favor of her confirmation to the highest court in the land.
Multiple Democratic senators pressed Barrett on her views on abortion over the two days of questions. In a tough line of questioning, Sen. Amy Klobuchar (D-Minn.) repeatedly attempted to find out how Barrett might rule on future arguments against Roe v. Wade. When Klobuchar asked if Barrett believed Roe to be a “super precedent,” the federal judge replied no.
“I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall in that category,” Barrett said. “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 and doesn’t call for its overruling.”
Super precedent is a legal concept that can be defined in various ways, said Justin Crowe, a political science professor at Williams College. Depending on how Barrett defines super precedent, it’s not surprising that the judge would not put Roe in that category.
“It’s cases that are so widely accepted now that no one could plausibly imagine overturning them,” Crowe explained. “The example that’s often given is Brown v. Board of Education. No judge, no politician, no respectable political actor would say that was wrong and we should go back to allowing segregation in public schools.”
When Democrats tried to tie Barrett’s nomination to President Donald Trump’s promise to gut the Affordable Care Act, which covers reproductive health services for millions, the federal judge continued her talking point that she must remain neutral.
“If I give off-the-cuff answers, then I would basically be a legal pundit,” she said. “I don’t think we want judges to be legal pundits. I think we want judges to approach cases thoughtfully with an open mind.”
Good, the pro-abortion rights speaker on Thursday’s panel, said she’s frightened by what Barrett’s confirmation could mean for the future of reproductive rights in the U.S. Although several states passed extreme anti-abortion legislation in 2019, public support for legal aboriton has remained at an all-time high with 61% reporting the procedure should be legal in all or most cases.
“Judge Barrett’s views are dangerously out of touch with most Americans, including my neighbors and me,” she said. “Her confirmation to the Court would absolutely take us in the wrong direction on abortion access, but also in the wrong direction on health care access in general and from everything we need to build the futures we want and deserve.”
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