Amy Coney Barrett Open to Overturning Roe v. Wade Because Precedent Isn’t Forever

National   Micaiah Bilger   Sep 30, 2020   |   5:46PM    Washington, DC

At the forefront of so many Americans’ minds is the question of how Amy Coney Barrett would rule on abortion if confirmed to the U.S. Supreme Court.

Barrett, President Donald Trump’s third Supreme Court nominee, would replace the late Justice Ruth Bader Ginsburg, a heroine of abortion activists who consistently ruled in favor of abortion during her nearly three decades on the court.

A new analysis on the Law and Crime blog suggested Barrett may indeed believe that Roe v. Wade was wrongly decided and rule against it, if the opportunity arises.

U.S. Sen. Josh Hawley of Missouri strengthened pro-lifers’ hopes Tuesday when he said Barrett meets his expectations. Among other things, the pro-life senator said he “wanted to see evidence that the nominee understood that Roe was wrongly decided, that Roe was an act of judicial imperialism.”

According to Law and Crime, Barrett’s statements and writings about Supreme Court abortion cases as well as stare decisis, which means sticking to past legal precedents, suggest that she may rule to restore protections for unborn babies.

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Evidence of this comes from a 2013 lecture that Barrett gave at the University of Notre Dame, where she is a law professor. In “Roe at 40: The Supreme Court, Abortion and the Culture War that Followed,” Barrett questioned the way in which the high court ruled on Roe v. Wade.

“It brings up an issue of judicial review: Does the Court have the capacity to decide that women have the right to obtain an abortion or should it be a matter for state legislatures? Would it be better to have this battle in the state legislatures and Congress rather than the Supreme Court?” she asked, according to a student newspaper report.

“Roe was a dramatic shift. The framework of Roe essentially permitted abortion on demand, and Roe recognizes no state interest in the life of a fetus,” she continued.

While Barrett also said it was “very unlikely” that the Supreme Court would overturn Roe and subsequent abortion ruling Planned Parenthood v. Casey, the blog noted that, at the time she said it, the Supreme Court had a liberal majority.

Notably, Barrett was a member of the Notre Dame University Faculty for Life Group from 2010 to 2016, and she received an award from the Thomas More Society, a pro-life Catholic legal group, in 2018.

Her writings also suggest that she does not believe the Supreme Court should uphold Roe just for the sake of precedent, or stare decisis.

In a law review article “Precedent and Jurisprudential Disagreement” mentioned in her Senate questionnaire, Barrett wrote that “stare decisis is a soft rule” and “one of policy rather than as an inexorable command.”

A “more relaxed form of constitutional stare decisis” is “both inevitable and probably desirable, at least in those cases in which methodologies clash,” she continued, focusing on issues of precedent that justices disagree with personally.

In the article, she also mentioned Casey, an abortion ruling that came after Roe and decided that states may not pass laws that impose an “undue burden” on women’s so-called right to abortion.

She wrote:

Stare decisis is a self-imposed constraint upon the Court’s ability to overrule precedent. The force of so-called superprecedents [“cases that no justice would overrule, even if she disagrees with”], however, does not derive from any decision by the Court about the degree of deference they warrant. Indeed, Planned Parenthood of Southeastern Pennsylvania v. Casey shows that the Court is quite incapable of transforming precedent into superprecedent by ipse dixit [editor’s note: that’s Latin for just because the court says so]. The force of these cases derives from the people, who have taken their validity off the Court’s agenda. Litigants do not challenge them [superprecedents]. If they did, no inferior federal court or state court would take them seriously, at least in the absence of any indicia that the broad consensus supporting a precedent was crumbling.

These statements and others suggest Barrett may be a strong pro-life justice who recognizes that human rights are for all human beings, born and unborn.

If confirmed by the Senate, she would solidify a strong 6-3 conservative majority on the Supreme Court. Pro-life leaders have praised her as an excellent choice for the court.

Barrett is a former clerk of the late Supreme Court Justice Antonin Scalia. Like Scalia, she has been described as an “originalist” judge. Though her judicial rulings on abortion are few, she did rule in support of two Indiana pro-life laws during her time on the Seventh Circuit.

She also has made several statements about the value of babies in the womb. According to the Law and Crime blog, Barrett signed a public letter in 2015 that emphasized “the value of human life from conception to natural death.” She also said she believes that life begins at conception.

A hearing on her confirmation is scheduled for Oct. 12 in the Senate.