CommentaryAmy Coney Barrett’s confirmation to the United States Supreme Court adds another originalist to the bench and cements a strong conservative majority on the Court. Although Democratic politicians have for years warned voters that the next election could determine the future of reproductive health care access, warning that ongoing respect for the right to abortion was at risk, those threats are no longer hypothetical. Members of the conservative majority have shown a willingness and, with the addition of Justice Barrett, an appetite to correct what they consider to be an almost fifty-year old mistake of constitutional interpretation in the form of the privacy rights that ground Roe v. Wade’s right to terminate a pregnancy.
Barrett’s personal views on abortion are no secret. As a Roman Catholic and member of the charismatic Christian group People of Praise, she has made various public statements about Roe and abortion in the past, including signing her name to an ad published in the South Bend Tribune to “oppose abortion on demand and defend the right to life from fertilization to natural death” and calling for “an end to the barbaric legacy of Roe v. Wade.”
Barrett has a thin judicial track record on abortion cases, though she has participated in two cases on the Seventh Circuit and both times voted (in dissent) to permit the state’s abortion restrictions to take effect. Notably, in a case challenging an Indiana law that banned abortions on the basis of race, sex or disability diagnosis, as well as requiring that fetal remains be buried or cremated, Barrett took the position that the race-, sex- and disability-selective abortion ban was a “eugenics statute” that did not run afoul of Supreme Court precedent protecting a woman from “making the ultimate decision to terminate her pregnancy before viability.”
In that case, the dissenting judges—including Barrett—chose to weigh in on the provision even though there was no need to: that particular part of the law was not on appeal before the court. This was because judges generally prefer to stick to the facts immediately before them. Here, the dissenters’ desire to opine on the constitutionality of the selective abortion ban suggests the depth of their disagreement and their willingness to uphold similar laws should the opportunity present itself in the future.
And Barrett has as much as said so publicly, commenting in 2016—when asked about the Supreme Court and the future of abortion rights—that although Roe’s core holding might not change, “I think the question of whether people can get very late[] abortions, how many restrictions can be put on clinics—I think that would change.” This prediction reflects the central legal strategy of the antiabortion movement to shift emphasis away from overturning Roe in favor of passing laws that make accessing abortion care more difficult, effectively eliminating the right to abortion in practice if not on paper. Now that she is seated on the Supreme Court, the opportunity is likely to present itself for Justice Barrett.
Barrett’s impact on reproductive health care is likely to extend far beyond abortion access, especially if future decisions dismantle or substantially undermine the privacy rights at issue in Roe that also justify constitutional protection for contraceptive use. The Supreme Court has already been willing to find expansive religious exemptions from anti-discrimination laws, and with Barrett on the bench, it will undoubtedly continue to be sympathetic to petitioners’ claims that their religious freedom is infringed by someone else’s sexual and reproductive choices—whether that’s using birth control, employing reproductive technology to get pregnant, or pursuing self-managed abortion.
The fact that Justice Barrett’s ascension to the Court was made possible by the passing of Justice Ruth Bader Ginsburg presents a sad irony that reflects the complexity of modern gender politics. While both women have been critical of the Roe v. Wade decision affirming a constitutional right to privacy that protects the decision to terminate a pregnancy, their reasons for doing so could not be more different.
Ginsburg, the architect of the successful legal strategy to secure heightened scrutiny of sex-based classifications, believed strongly that the law should not burden members of either sex by forcing them to live according to socially-prescribed gender roles. She favored liberalized abortion laws on the theory that requiring women to become mothers against their will is incompatible with sex equality, and she was concerned that the Court’s opinion in Roe, decided in 1973, forestalled the political process underway in various states at the time from reaching that conclusion, while also giving opponents a clear target for their continued political and rhetorical opposition to abortion.
By contrast, Barrett opposes legal protections for abortion access, believing that life begins at fertilization. Her criticism of Roe echoes the complaint that the Supreme Court should have left it to the states to work this issue out but reflects a contrasting vision that many states would have been less tolerant of abortion rights than the court’s jurisprudence has been. Barrett’s personal life, as the mother of seven children—including one with Down syndrome—and a successful lawyer, law professor, and judge is mentioned frequently as if a silent retort to Ginsburg’s position that sex equality requires that women have access to abortion.
Barrett’s willingness to speak as a judge on abortion-related disputes that are not currently before her suggests an embrace of judicial activism that sharply contrasts with Ginsburg’s philosophy of judicial minimalism. The idea that Barrett brings to the Court an appetite to change the law governing abortion—whether by overturning Roe or permitting future abortion restrictions so expansive it will be as if Roe survives in name only—will feel to many like a betrayal of Ginsburg’s legacy. This betrayal is made all the more painful by the fact that it is a female justice, only the fifth in the Court’s history, who may lead the further whittling away of abortion rights.
The reality that Barrett’s confirmation all but assures the Court will take a more restrictive approach to reproductive health care in the coming years means that proponents of more robust abortion rights, and the vision of sex equality Justice Ginsburg understood to ground those rights, will shift attention to advancing their cause in arenas outside the federal judiciary. While this may align with Ginsburg’s views on the history of Roe, it will in the meantime leave many people with less autonomy over their reproductive lives.
Elizabeth Kukura is an Assistant Professor of Law at the Drexel University Kline School of Law, where she researches the intersections of health law and gender with a particular focus on reproductive health care.
Suggested citation: Elizabeth Kukura, The Future of Reproductive Health Care Under the New Conservative Supreme Court Majority, JURIST – Academic Commentary, December 17th 2020, https://www.jurist.org/commentary/2020/12/elizabeth-kukura-supreme-court-reproductive-health/.
This article was prepared for publication by Cade Richmond, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org
