Amy Coney Barnett: What She Means for Abortion Rights in the US
Donald Trump’s nomination for the Supreme Court can be of great consequence regarding abortion rights in the US.
(This article was first published on 28 September 2020. It has been republished from The Quint’s archives after Amy Coney Barett’s confirmation as US Supreme Court judge.)
Last week, US Supreme Court Justice Ruth Bader Ginsburg died of metastatic pancreatic cancer. Ginsburg’s “most fervent wish”, revealed by her granddaughter, was that she “not be replaced until a new president is installed”. Just eight days later, President Donald Trump has announced Amy Coney Barrett to fill Ginsburg’s newly vacant seat.
The Future of Roe v Wade
If Barrett is confirmed, and Republicans have indicated they have the votes to fill the vacancy, this will be Trump’s third Supreme Court appointment.
Since the late 1970s, Republicans have made opposition to Roe v Wade a central element of their social, political and legal identity.
How Do Conservative Judges Differ Today?
However, once a justice is confirmed to a lifetime appointment on the nation’s highest court, his or her voting behaviour is impossible to guarantee.
In the early 1990s, there were ostensibly seven conservative justices on the court, five of whom had been nominated by Republican presidents Reagan and George H W Bush.
Yet in the case , a challenge over abortion laws in the state of Pennsylvania, a triumvirate of Reagan-Bush appointees sided with the two liberal justices, arguing that “liberty finds no refuge in a jurisprudence of doubt” and the meant Roe v Wade must be upheld.
Like Barrett and her mentor, the late Justice Antonin Scalia, they champion the legal theory of “originalism”, which views Roe v Wade and the broader right to privacy as a “fanciful reading” of the US Constitution. Anti-abortion lawyers argue that if the court finds that the right to privacy does not exist, “the state would be free to regulate and prohibit abortion”.
What’s in Barnett’s Appointment for John Roberts?
When Kavanaugh was confirmed in 2018, conservatives had a 5-4 majority on the court. Court watchers predicted Chief Justice John Roberts would emerge as a swing vote on a range of issues.
Roberts had cast votes with the liberal justices, most significantly in upholding the constitutionality of Obamacare (otherwise known as the Affordable Care Act) in 2012. He also has a well-established interest in the reputation of the Supreme Court and the importance of precedent.
In his 15 years on the bench, Roberts has made it clear he does not support abortion rights, but he was expected to avoid an outright assault on Roe v Wade.
In June this year, Roberts sided with the liberal justices to rule a Louisiana anti-abortion law unconstitutional on the grounds that precedent was established in a nearly identical case the court had struck down in 2016. Yet in his separate concurrence, Roberts was clear he still agreed with his dissenting position in 2016.
If Barrett is confirmed, Roberts’ power as a swing voter will be dramatically diminished. This would affect the final judgments of the court, but just as significantly, it would shape what kind of cases the court hears.
Less dependent on Roberts, the conservative justices are likely to take up a broader range of controversial matters, confident they have a majority.
Which Abortion Cases Could Be Decided Next?
Currently, there are two abortion cases the justices could decide to hear. One is a challenge to a 2018 Mississippi law that banned abortion from 15 weeks, and the other relates to the provision of early medication abortions during the COVID-19 pandemic. In the past decade, an unprecedented number of anti-abortion laws have been passed in US states, many based on model legislation developed by anti-abortion groups.
There are also (outlawing abortion after 20 weeks), (targeting dilation and evacuation, the most common second-trimester abortion procedure) and (outlawing abortion for reasons of race, sex or disability).
Although Roe v Wade is politically contentious, its popularity with the general public has remained stable since the late 1980s.
Will they choose cases that incrementally erode abortion rights and access, or will they, for the first time since the 1990s, push for reconsideration of the constitutional issues and rights at the very heart of Roe v Wade?
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