Amy Coney Barrett & Roe v. Wade: Her Position on Abortion

amy barrett roe

Judiciary Committee hearing Amy Barrett's Roe v. Wade positions are under scrutiny.

Has Amy Coney Barrett taken any position on Roe v. Wade? That’s what some people are wondering as those who support abortion worry that a more conservative leaning U.S. Supreme Court could overturn it.

Barrett, a federal judge from Indiana, who is expected to be President Donald Trump’s pick to replace Justice Ruth Bader Ginsburg on the United States Supreme Court, has indicated that she personally believes life begins at conception. She has also written scholarly articles on the concept of following precedent on the court, known as stare decisis, and she gave a talk about Roe v. Wade. She is a devout Catholic who has also said she believes it’s wrong for judges to let personal beliefs influence their legal decisions.

Barrett was one of the finalists to be Trump’s pick to replace Justice Anthony Kennedy in 2018. In the end, Trump chose another nominee, Justice Brett Kavanaugh,

Abortion is likely to be a key flashpoint in any confirmation battles because some are concerned that a more solidly conservative leaning court could overturn Roe v. Wade. As Amy Barrett has increasingly been described as a possible Trump pick – perhaps even among his final two – scrutiny has increased on Barrett’s past comments on abortion and Roe v. Wade.

What has Barrett said about the matter?

Here’s what you need to know:

Barrett Belonged to a Group Called ‘University Faculty for Life’

amy barrett children

Senate Judiciary Committee hearingAmy Barrett’s children Vivian and Emmy sit on either side of her.

While a professor at Notre Dame, Barrett, a devout Catholic who is the mother of seven children, was a member of a group called “University Faculty for Life” from 2010-2016, according to her Judiciary Committee questionnaire.

That group’s mission statement starts, “University Faculty for Life was founded in 1989 to promote research, dialogue and publication by faculty who respect the value of human life from conception to natural death. Abortion, infanticide and euthanasia are highly controversial topics, but we believe they should not be resolved by the shouting, news bites and slogans that have dominated popular presentations. Because we believe the evidence is on our side, we would like to assure a hearing for our views in the academic community.”

Barrett Has Said She Believes Life Begins at Conception & That Court Rulings on Abortion ‘Ignited a National Controversy’

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Amy Barrett

In 2013, Notre Dame Magazine published an article by associate editor John Nagy on students and faculty marking “20 years of Roe.”

The magazine article reports that “Barrett spoke both to her own conviction that life begins at conception and to the ‘high price of pregnancy’ and ‘burdens of parenthood’ that especially confront women before she asked her audience whether the clash of convictions inherent in the abortion debate is better resolved democratically.”

The article says Barrett gave a presentation called “Roe at 40: The Supreme Court, Abortion and the Culture War that Followed.”

The article continued: “By creating through judicial fiat a framework of abortion on demand in a political environment that was already liberalizing abortion regulations state-by-state, she said, the court’s concurrent rulings in Roe and Doe v. Bolton ‘ignited a national controversy.’ Barrett noted that scholars from both sides of the debate have criticized Roe for unnecessarily creating the political backlash known colloquially as ‘Roe Rage.'”

However, she said she thought it was “very unlikely” the court would ever overturn Roe and she “sees the political battle shifting toward matters of public and private funding,” according to the magazine.

There’s Debate Over Whether Barrett Implied Roe v. Wade Was an ‘Erroneous Decision’

There’s a media disagreement about scholarly articles written by Barrett that deal with stare decisis and what they might foretell about any eventual Roe v. Wade decision. The concept basically means adherence to precedent and past decisions; thus, whether a judge is willing to overturn past legal precedent is seen as a key predictor in how a justice might decide a case on something like Roe. Republican Senator Susan Collins of Maine told ABC that she told Trump “that I was looking for a nominee that would demonstrate a respect for precedent. Whether or not they respect precedent will tell a lot about whether or not they would overturn Roe vs. Wade.”

To the Los Angeles Times, Barrett’s writings amount to her being “unusually frank in her support for overturning precedents that are not in line with the Constitution.”

The newspaper cites this passage from a 2013 law review article by Barrett in which she said, “Stare decisis is not a hard-and-fast rule in the court’s constitutional cases…there is little reason to think reversals would do it great damage…I tend to agree with those who say that a justice’s duty is to the Constitution and that is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks is clearly in conflict with it.”

She also wrote, “If anything, the public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle. Because there is a great deal of precedent for overruling precedent, a justice who votes to do so engages in a practice that the system itself has judged to be legitimate rather than lawless.”

“In a 2003 scholarly article, she suggested Roe vs. Wade was an ‘erroneous decision,'” The Los Angeles Times reported. A group of pro choice groups raised the same concern in a 2017 letter opposing Barrett’s nomination to the federal judiciary, writing, “Relatedly, in an article calling for greater ‘flexibility’ from stare decisis, Barrett cited Planned Parenthood v. Casey as an example of a decision where the court failed to overturn an “erroneous decision” (i.e. Roe).vii From both her choice of language and repeated references to Casey, one reasonably infers that she believes Roe was incorrectly decided.”

However, National Review has challenged the Times’ reporting (and the general assumption that Barrett suggested a position on Roe v. Wade), saying the newspaper misread the citation, which “does not remotely ‘suggest’ any view of the scholar on Roe.”

National Review reported that the only passage in the Barrett article using the words “erroneous decision” reads as follows:

The questions that traditionally have occupied courts and scholars with respect to stare decisis are systemic. Courts and commentators have considered the kinds of errors that justify or even require the overruling of precedent. They have thought about the kinds of reliance interests that justify keeping an erroneous decision on the books.

National Review also cited a footnote in the passage and concluded, “Barrett is citing competing opinions in Planned Parenthood v. Casey because they present different views about the kinds of reliance interests that justify keeping an erroneous decision on the books.” You can read the National Review critique in full here.

Barrett’s scholarly article dealt with the concept of stare decisis. You can find it here. The abstract reads: “In this Article, I argue that the preclusive effect of precedent raises due-process concerns, and, on occasion, slides into unconstitutionality. The Due Process Clause requires that a court give a person notice and an opportunity for a hearing before depriving her of life, liberty or property. Because of this requirement, courts have held in the context of issue preclusion that as a general rule, judicial determinations can bind only parties. The preclusion literature asserts that this parties only requirement does not apply to stare decisis because stare decisis, in contrast to issue preclusion, is a flexible doctrine. Yet stare decisis often functions inflexibly in the federal courts, particularly in the courts of appeals. I claim that in its rigid application – when it effectively forecloses a litigant from meaningfully urging error – correction – stare decisis unconstitutionally deprives a litigant of the right to a hearing on the merits of her claims. To avoid the due-process problem, I suggest that courts render stare decisis more flexible; specifically, I propose that courts remove rules – like, for example, the rule that one appellate panel cannot overrule another – that create nearly insurmountable barriers to error – correction.”

She wrote a second article on Antonin Scalia and stare decisis. You can find it here. The abstract for that article reads, “The question whether stare decisis is compatible with originalism has occupied both originalists and their critics. In this Essay, I explore what light Justice Scalia’s approach to precedent casts on that question. I argue that while he did treat stare decisis as a pragmatic exception to originalism, that exception was not nearly so gaping as his “fainthearted” quip suggests. In fact, a survey of his opinions regarding precedent suggests new lines of inquiry for originalists grappling with the role of stare decisis in constitutional adjudication.”

A Democratic Senator Caused Controversy By Saying She Was Concerned the ‘Dogma’ Lives in Barrett

Amy Coney Barrett’s religion provoked controversy during her nomination hearing to become a federal judge. In 2017, U.S. Senator Dianne Feinstein, a Democrat from California, brought up Amy Barrett’s religion and said she was concerned “the dogma lives loudly within you.”

Feinstein continued, “And that’s of concern when you come to big issues that large numbers of people have fought for for years in this country.” She added, “You are controversial. Let’s start with that. You’re controversial because many of us who have lived our lives as women really recognize the value of finally being able to control our reproductive systems, and Roe entered into that, obviously. … You have a long history of believing that your religious beliefs should prevail.”

Some criticized Feinstein for going too far and possibly creating an unconstitutional religious test to be on the U.S. Supreme Court. The U.S. Conference of Catholic Bishops said Feinstein’s remarks were a throwback to a time when “anti-Catholic bigotry did distort our laws and civil order.”

According to National Review, Amy Coney Barrett is considered a devout Catholic. “…she speaks about God as if she really believes in His existence,” the conservative website National Review reported of Barrett’s faith.

In a graduation speech, Barrett referenced God, saying, “No matter how exciting any career is, what is it really worth if you don’t make it part of a bigger life project to know, love and serve the God who made you?”

The Christian Broadcasting Network reported that evangelicals were “buzzing about Amy Coney Barrett.” David Brody, CBN’s Chief Political Correspondent, told the network, “Many of my sources, evangelical in nature, love her. They believe that she is the one that if they had their dream pick that she would be the one. Barrett has been very outspoken of her Catholic views and God.”