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A Look At Amy Coney Barrett's Record On Abortion Rights

Sep 28, 2020
Originally published on September 28, 2020 10:49 pm

President Trump has made no secret of his intentions regarding the U.S. Supreme Court and abortion rights. During a presidential debate in 2016, Trump vowed to appoint justices who'd vote to overturn the 1973 Roe v. Wade decision that legalized abortion nationwide.

"That will happen automatically, in my opinion, because I am putting pro-life justices on the court," Trump said. "I will say this: It will go back to the states, and the states will then make a determination."

Trump has followed through on naming conservative judges to the federal courts. But nominees for judicial appointments – including his latest, Judge Amy Coney Barrett – tend to be a bit more reserved when speaking about their views on reproductive rights.

During her Senate confirmation hearings for her seat on the 7th U.S. Circuit Court of Appeals in 2017, Barrett — who has spoken openly about her Catholic faith — was asked about her personal views on Roe v. Wade. She gave a version of what's become a standard answer to that question for people in her position, saying, "All nominees are united in their belief that what they think about a precedent should not bear on how they decide cases."

Barrett, 48, has written and spoken about the issue before, including during an appearance at Jacksonville University in Florida shortly before the 2016 election, while a law professor at the University of Notre Dame. Barrett was asked about ways a hypothetical future Supreme Court might allow states to pass more restrictions on abortion.

"I think don't think the core case – Roe's core holding that, you know, women have a right to an abortion – I don't think that would change. But I think the question of whether people can get very late-term abortions, how many restrictions can be put on clinics – I think that would change," Barrett said at the time.

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Her record as a federal appeals court judge offers some potential clues to her views. In two cases where a lower court ruled to block Indiana laws imposing limits on abortion, Barrett voted to hear arguments that could have potentially overruled the lower court.

But in a third case, involving buffer zones designed to protect abortion patients from protesters outside clinics, Barrett voted to uphold precedent allowing for those zones.

Barrett's colleague, Notre Dame law professor Carter Snead, said it's difficult to predict exactly how she would rule on abortion-related cases on the Supreme Court. Snead described Barrett as "someone who understands the complexity of the question that's gonna come before the court, and who understands the stakes ... and is going to be very thoughtful about how she proceeds."

To Katie Watson, an attorney and bioethicist at Northwestern University's Feinberg School of Medicine, Barrett's record seems pretty straightforward.

"I'd expect her to overrule Roe, and she appears to have four other sitting justices who are willing to join her," Watson said.

While there is only so much you can read into Barrett's past judicial record, Watson said you don't really have to.

"I think the best evidence of her position on Roe v. Wade is that President Trump has said he will only appoint justices who are committed to reversing Roe, and there's no reason not to believe him," she said.

On that question, activists on both sides of the abortion debate also seem to believe Trump. Barrett is receiving widespread praise from anti-abortion-rights groups, and opposition from reproductive rights advocates, such as Fatima Goss Graves, president of the National Women's Law Center.

"When you pair her record with the context that this issue is coming in, it paints this extraordinary picture that even though we're in a situation where the vast majority of people in this country support access to abortion, that we are gonna have something pushed through where the Supreme Court may leave us without that right," she said.

While a majority of Americans favor some limitations on abortion, most also support Roe v. Wade. If Barrett is confirmed and the court indeed overturns that precedent, the issue would be left to the states – setting up intense fights in legislatures, and legal observers said, leading to an even more patchwork system, where abortion rights hinge almost entirely on where a person lives.

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AILSA CHANG, HOST:

President Trump has made no secret of his intentions regarding the U.S. Supreme Court and abortion rights. Here he is during a presidential debate in 2016, vowing to appoint justices who would vote to overturn the 1973 Roe v. Wade decision which legalized abortion nationwide.

(SOUNDBITE OF ARCHIVED RECORDING)

PRESIDENT DONALD TRUMP: And that'll happen automatically, in my opinion, because I am putting pro-life justices on the court. I will say this. It will go back to the states, and the states will then make a determination.

CHANG: Nominees for judicial appointments tend to be a bit more reserved when speaking about their views on reproductive rights. NPR's Sarah McCammon has this look at Judge Amy Coney Barrett's record.

SARAH MCCAMMON, BYLINE: During her Senate confirmation hearings for her seat on the 7th Circuit Court of Appeals in 2017, Amy Coney Barrett was asked about her views on Roe v. Wade, and she gave a version of what's become a pretty standard answer to that question for people in her position.

(SOUNDBITE OF ARCHIVED RECORDING)

AMY CONEY BARRETT: Well, senator, it's not that I wouldn't have personal beliefs. I'm sure that every nominee before you has beliefs about that precedent and many other. But all nominees are united in their belief that what they think about a precedent should not bear on how they would decide cases.

MCCAMMON: Barrett has written and spoken about the issue before, as in this appearance at a university in Florida shortly before the 2016 election while a law professor at Notre Dame. She was asked about ways a future Supreme Court might allow states to pass more restrictions on abortion.

(SOUNDBITE OF ARCHIVED RECORDING)

BARRETT: I don't think the core case, Roe's core holding that, you know, women have a right to an abortion - I don't think that would change. But I think the question of whether people can get very late-term abortions, you know, how many restrictions can be put on clinics - I think that would change.

MCCAMMON: Barrett's record as a federal appeals court judge offers some potential clues to her views. In two cases where a lower court ruled to block Indiana laws putting limitations on abortion, Barrett voted to hear arguments that could have potentially overruled the lower court. But in a third case involving buffer zones designed to protect abortion patients from protesters, Barrett voted to uphold precedent allowing for those zones. Barrett's colleague Notre Dame law professor Carter Snead says it's difficult to predict exactly how Barrett would rule on abortion-related cases before the Supreme Court.

CARTER SNEAD: I get from Judge Barrett someone who understands the complexity of the question that's going to come before the court and who understands the stakes both in terms of stability as well as faithfulness to the rule of law and is going to be very thoughtful about how she proceeds.

MCCAMMON: Katie Watson, an attorney and bioethicist at Northwestern University's Feinberg School of Medicine, says there's only so much you can read into Barrett's past judicial record. But you don't really have to.

KATIE WATSON: I think the best evidence of her position on Roe v. Wade is that President Trump has said he will only appoint justices who are committed to reversing Roe, and there's no reason not to believe him.

MCCAMMON: On that question, activists on both sides of the abortion debate also seem to believe Trump. Barrett is receiving widespread praise from anti-abortion rights groups and opposition from advocates for abortion rights. According to recent polling, most Americans support Roe. Reversing it would set up intense fights in state legislatures and, legal observers say, create an even more patchwork system where access to abortion hinges almost entirely on where you live.

Sarah McCammon, NPR News, Washington.

(SOUNDBITE OF FLASH AND THE PAN SONG, "WALKING IN THE RAIN") Transcript provided by NPR, Copyright NPR.