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The Barrett factor: Will Trump’s Supreme Court nominee roll back abortion access?

What the potential Justice’s legal history, writings and prior testimony say about her position on reproductive rights.

Anti-abortion advocates gather outside the Planned Parenthood clinic in St. Louis on June 4, 2019.
Jeff Roberson, Associated Press

President Donald Trump has nominated Amy Coney Barrett, a judge for the U.S. Court of Appeals for the 7th Circuit, to replace the late Justice Ruth Bader Ginsburg on the Supreme Court. Though a coronavirus surge among GOP senators has complicated the proceedings, Barrett’s confirmation is still expected. Her appointment would give the Supreme Court a 6-3 conservative majority that could shape rulings for decades.

Barrett could redefine the Court’s position on abortion. Where Justice Ginsburg protected reproductive rights, Barrett has historically ruled against greater access to abortion procedures. In May, the Court will hear a lawsuit filed by the American College of Obstetricians and Gynecologists against the Food and Drug Administration, arguing for relaxing requirements for patients to obtain abortion medication in person during the coronavirus pandemic.

The issue

  • During his 2016 campaign, Trump said that overturning Roe v. Wade, the decision establishing that the government cannot prohibit abortions, “will happen automatically, in my opinion, because I am putting pro-life justices on the court.”
  • Asked recently whether Barrett would help overturn Roe v. Wade, Trump said it “is certainly possible.”
  • Many abortion cases—including the College of Obstetricians and Gynecologists’ lawsuit—do not impact the legality of the procedure itself but rather decide issues of access.
  • The College contends that requiring patients to get mifepristone, a pill that induces miscarriage, directly from a doctor instead of via a pharmacy or mail constitutes an unnecessary risk during the pandemic, when such standards have been loosened for other medications.
  • District and circuit courts have ruled in favor of the College, and most recently, the Trump administration asked the Supreme Court to block the order to suspend the in-person requirement.

Barrett’s perspective

Much of the discussion around Barrett’s views on abortion has centered on her Catholic faith, but her legal comments are instructive as well. “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,” she said in a 2016 talk. “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.”

The decision

Barrett could shift the balance of the Supreme Court on this issue. In June, the Court struck down a Louisiana law requiring that doctors who perform abortions have admitting privileges at hospitals—a case that, like the College’s lawsuit, affected access to abortion procedures. Chief Justice John Roberts cited precedent in wielding a key vote, but Barrett has expressed her willingness to go against precedent, writing in a 2013 article, “To be sure, overruling precedent is disruptive. But some instability in constitutional law is the inevitable byproduct of pluralism.”

Key quote

“It’s never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else on the law.” — Barrett during her 2017 nomination hearing for the 7th Circuit appeals court.