Barrett Offers Supreme Court Many Paths to Erode Abortion Rights

Adding another conservative justice to the U.S. Supreme Court will put the high court’s right flank in the strongest position in decades to erode reproductive rights. 

The question going into Amy Coney Barrett’s Senate confirmation hearings Monday is how the new justice, and a newly composed court, might go about dismantling abortion access in the U.S. Would she help overturn Roe v. Wade or opt for a different route?

The court could reconsider the landmark 1973 ruling. In recent years, anti-abortion legislators have passed dozens of abortion bans as potential “litigation vehicles” for overturning Roe, said Brian Fitzpatrick, a law professor at Vanderbilt Law School, who focuses on judicial selection and constitutional law. “There is an appetite for testing out whether the Supreme Court might overrule Roe v. Wade.” 

Invalidating Roe would leave abortion rights up to states. Only about a dozen states protect abortion rights in their constitutions. Almost as many have “trigger laws” that would immediately leave some 25 million Americans without access to care in their home states. 

Abortion advocates, however, say they suspect the court might formally leave Roe intact while rolling back later rulings that could leave the procedure unavailable to millions of people. There are currently 17 cases challenging abortion rights one step away from the nation’s highest court, many of which challenge protections or access.

“They know everybody’s eyes are on Roe,” said Leila Abolfazli, director of federal reproductive rights at the National Women’s Law Center. “They would like to basically gut Roe, but leave it in place.”

Barrett appears to personally oppose abortion. In 2006, she was one of hundreds of people who signed a two-page newspaper ad placed by St. Joseph County Right to Life, an anti-abortion group that also takes issue with in-vitro fertilization. Its signatories said they “oppose abortion on demand and defend the right to life from fertilization to natural death.” On the next page, the ad called for “an end to the barbaric legacy of Roe v. Wade.” More recently, Barrett put her name on an ad that decried the “infamous” 1973 ruling and called for “the unborn to be protected in law.”

As recently as 2017, she was reportedly a member of a small Christian organization People of Praise, which believes life begins at conception. She also served as a trustee for a school run by the group. 

Barrett also made two abortion-related presentations to students, “The Supreme Court’s Abortion Jurisprudence” and “Being a Woman After Roe,” which she told senators about in a new disclosure. She hasn’t previously included the talks in her required paperwork for the Senate Judiciary Committee last month. 

Read more: In Amy Coney Barrett, Religious Right Sees One of Its Own

Fitzpatrick points out that her personal views might not result in her striking down Roe, a legal protection a majority of Americans support. “It’s more likely she has a view like the other Supreme Court justices, that she would not overturn a precedent lightly,” he said. “It would take a lot for her to do that. To overturn Roe, it’s a big step.”

In her 2017 confirmation hearing for an appeals court judgeship, she said she would follow precedent on abortion in her then-role. But her academic writings suggest she would be more willing than her mentor, the late Justice Antonin Scalia, to overturn past rulings on the high court, said Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies at the libertarian Cato Institute.

What Barrett has shown, so far, is a willingness to uphold restrictions. Over the decades, legislatures have enacted various regulations on doctors and clinics, like requiring physicians have hospital admitting privileges or mandating counseling and a waiting period before getting the procedure. These laws are promoted as ways to protect women’s health, but can put clinics out of business and curtail access. 

In 2019 Barrett voted to consider reviving an Indiana law that would have made it harder for pregnant girls to get abortions without notifying their parents. She also wanted the court to reconsider a 2018 ruling that struck down a law requiring funerals for abortion remains and banning the procedure based on sex, race or genetic disorders such as Down Syndrome. “There is a difference between ‘I don’t want a child’ and ‘I want a child, but only a male’ or ‘I want only children whose genes predict success in life,’” reads the dissenting opinion written by Judge Frank Easterbrook that Barrett signed. 

The 1992 ruling Planned Parenthood v. Casey put limits on such restrictions by creating an “undue burden test.” A state can’t impose rules that significantly impede access, the court found. 

In 2016, the court, for example, struck down a Texas law that required physicians have hospital admitting privileges. The justices ruled that the mandate didn’t have medical benefits and placed an “undue burden” on women seeking abortion by forcing clinics to close.

Read more: Abortion Clinics Are Getting Nickel-and-Dimed Out of Business

This summer, the court reaffirmed the Casey precedent when it deemed an identical Louisiana regulation unconstitutional, but the conservative justices suggested they’d be open to more substantial changes to abortion laws in their opinions. 

Chief Justice John Roberts joined with the court’s liberal wing to strike down the law, saying he was bound by the 2016 decision. But he reiterated his view that the Texas case was “wrongly decided” and indicated he would give states broad latitude to impose other types of restrictions. In their dissents, Justice Samuel Alito said there is “ample evidence” to show admitting privileges “help protect the health of women” and Justice Brett Kavanaugh said there simply wasn’t enough “factfinding” to prove the law shouldn’t stand. 

“What you had this summer was the conservatives, except for Roberts, who were saying we need to get rid of Casey completely,” Abolfazli of the National Women’s Law center said. 

By going after Casey or allowing more restrictions, the court could erode abortion access without touching the landmark case that legalized the procedure 50 years ago.

“For far too many people even today Roe is a right in name only,”  said Helene Krasnoff, vice president of public policy litigation and law at Planned Parenthood Action Fund. “By layering restriction upon restriction, it can effectively overrule Roe.” 

— With assistance by Greg Stohr

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