Amy Coney Barrett’s Supreme Court nomination underscores the battles to come over Roe v. Wade and religious liberty
Former Supreme Court Justice Ruth Bader Ginsburg, who died last week of metastatic pancreatic cancer, became a cultural icon for the left: Her “notorious RBG” nickname and an image of her wearing a gold crown adorned canvas bags, T-shirts, and coffee mugs.
U.S. Circuit Judge Amy Coney Barrett, whom President Donald Trump announced Saturday as his pick to replace Ginsburg, may well become a cultural inspiration for religious conservatives.
At Barrett’s 2017 Senate confirmation hearing for her current seat on the 7th U.S. Circuit Court of Appeals, Sen. Dianne Feinstein, D-Calif., and other Democratic members of the Senate Judiciary Committee probed Barrett about the role her Roman Catholic faith plays in her judicial decisions. Feinstein questioned whether Barrett would be impartial: “The dogma lives loudly within you.”
Three Democrats cast votes in Barrett’s favor, and the Senate confirmed her, 55-43. But Feinstein’s remark sparked outrage, even while religious conservatives embraced the phrase. Soon, supporters circulated T-shirts, pins, and mugs with the phrase “the dogma lives loudly within me” alongside crosses and other religious imagery.
Trump’s selection of Barrett Saturday is no surprise: Court watchers consider Barrett a solid judicial conservative. She was also a favorite in 2018 for the vacancy that ultimately went to Justice Brett Kavanaugh. Barrett’s addition to the court and the resulting conservative 6-3 majority would highlight an overriding question for pro-lifers: Will this be the court to overturn the landmark 1973 Roe v. Wade decision that legalized abortion nationwide?
While announcing Barrett as his nominee Saturday from the White House Rose Garden, Trump called Barrett, “a woman of unparalleled achievement, towering intellect, sterling credentials, and unyielding loyalty to the Constitution.”
In her remarks, Barrett included a tribute to Ginsburg, saying the former justice “not only broke glass ceilings, she smashed them.”
“The president has nominated me to serve on the United States Supreme Court, and that institution belongs to all of us,” Barrett said. “If confirmed, I would not assume that role for those in my own circle, and certainly not for my own sake. I would assume this role to serve you.”
A high-stakes and likely vitriolic Senate confirmation process will ensue. It will also be speedy, if Senate Majority Leader Mitch McConnell, R-Ky., gets his way. Republicans want to fill the seat before the Nov. 3 presidential election. If confirmed, 48-year-old Barrett could serve on the court for a generation.
Barrett is originally from the suburbs of New Orleans and, in contrast to the other justices on the bench, is not an Ivy Leaguer. Her husband, Jesse Barrett, is a partner in an Indiana law firm. They have seven children, two of whom they adopted from Haiti, and their youngest has Down syndrome.
Harvard Law’s Ian Samuel in an op-ed praising Barrett’s “impeccable conservative credentials” wryly commented, “I have never met a person who really believed in abortion rights who also had seven children.”
Barrett attended Notre Dame Law School on a full-tuition scholarship and held high-profile clerkships, including one under the late Justice Antonin Scalia. Afterward, she operated a private practice for a few years, then shifted to a 15-year academic career at Notre Dame. She was a member of University Faculty for Life, a pro-life group. During Barrett’s first confirmation hearing, 450 of her former students sent a letter to the Senate Judiciary Committee saying she was “supremely qualified” for the job.
Barrett was a member of the Federalist Society, and her past writing indicates an originalist judicial philosophy. She previously praised Scalia’s fidelity in interpreting the law and the Constitution according to their plain meaning and authors’ intent. In her remarks Saturday, she said that Scalia’s “judicial philosophy is mine too. A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.”
Carrie Severino, president of the conservative legal group Judicial Crisis Network, praised Barrett as a “champion of originalism.”
John Malcolm, vice president of the Heritage Foundation, told WORLD it’s “hard to find too many chinks in Amy Coney Barrett’s armor.”
Pro-lifers were happy with Barrett’s nomination. Dozens of active court cases around the United States could challenge the precedent Roe set. According to Americans United for Life’s July litigation report, at least 50 abortion-related cases are percolating around the United States. Some deal with issues of the health and safety of the mother, others address protections for babies at certain stages of pregnancy, and others seek to protect babies from being aborted due to their race, sex, or disability.
States are already gearing up for the possibility of a post-Roe future. Some have passed legislation that would outlaw abortion if the high court overturns Roe. Georgia, Kentucky, Louisiana, Mississippi, and Ohio have passed “heartbeat” bills banning abortion once a baby has a detectable heartbeat. Missouri, Arkansas, and Utah have passed laws to ban abortions with cut-off periods ranging from eight weeks to 20 weeks of gestation.
If she’s confirmed, the first abortion case Barrett could hear as a Supreme Court justice may be a challenge to regulations for chemical abortions during the COVID-19 pandemic, American College of Obstetricians and Gynecologists v. U.S. Food and Drug Administration. A lower court order currently allows women to receive the abortion-inducing Mifeprex pill without visiting a medical office, due to coronavirus protocols. The FDA wants the Supreme Court to overturn the order and reinstate the in-person requirement while the case winds its way through the courts.
Katie Glenn, government affairs counsel at Americans United For Life, told me the court will have to decide whether to rule on the case with only eight justices or wait for Ginsburg’s replacement.
While an appellate judge, Barrett heard several abortion-related cases. One, Commissioner of the Indiana State Department of Health v. Planned Parenthood of Indiana and Kentucky Inc., challenged a state requirement that aborted babies’ remains be buried or cremated. The full appellate court declined to hear the case, effectively siding with a lower court to block the law. Barrett joined another judge’s dissent that raised another issue at stake in the case: whether states could bar abortions based on the race, sex, or disability of the baby.
In 2019, Barrett also pushed for the 7th Circuit to hear Box v. Planned Parenthood of Indiana and Kentucky Inc., addressing parental consent for minors having abortions. A three-judge panel had struck down a consent law as unconstitutional. When the full appellate court declined to hear it, Barrett joined the dissent.
That same year, Barrett joined the majority to uphold a Chicago law preventing pro-life “sidewalk counselors” from approaching women walking into an abortion facility.
“We have confidence that she will fairly apply the law and Constitution as written, which includes protecting the most vulnerable in our nation: our unborn children,” said Jeanne Mancini, president of March for Life. “Barrett certainly has the support of pro-life Americans who know, perhaps better than anyone else, the danger of activist judges.”
Marjorie Dannenfelser, president of the Susan B. Anthony List, said the president “has chosen an absolute all-star in Judge Amy Coney Barrett.”
Republicans plan to move fast on a vote. That infuriates Democrats, who accuse Republicans of hypocrisy since, in 2016, they refused to consider President Barack Obama nominee Merrick Garland to replace Justice Scalia. McConnell argues the situation was different then: It was a lame-duck presidency, and the opposing party controlled the Senate.
So far, the GOP appears to have the votes needed to confirm Barrett. Only two of the Senate’s 53 Republicans have withheld their support: Alaska’s Lisa Murkowski and Maine’s Susan Collins, who faces a tough reelection fight in a blue state. With Vice President Mike Pence’s ability to break a Senate tie, McConnell can plow ahead as long as he doesn’t lose more than three Republicans.
The high court is likely to consider some blockbuster cases soon. One of the most-watched cases will help determine the fate of the Obama-era healthcare law, the Affordable Care Act. A challenge argues the law became unconstitutional once Congress ended the tax penalty for people who decide not to purchase health insurance. The Supreme Court is scheduled to hear arguments the week after the election.
—This story has been corrected to reflect that John Malcolm spoke with WORLD’s Mary Reichard.