by Grace Aquilina
As of September 26th, Amy Coney Barrett is the Supreme Court nominee to succeed the late Justice Ruth Bader Ginsburg. Barrett is a Notre Dame law professor and currently serves as a judge for the seventh circuit. A conservative Catholic and mother of seven children, Barrett’s religious beliefs and views on reproductive rights have been objects of intense analysis in the media.
Let’s take a look at what her views are on the two life issues that have received the most scrutiny: the death penalty and abortion.
Although Barrett opposes capital punishment, it is unclear how this belief will affect her work as a Supreme Court Justice. In a 1998 article, Barrett argued that Catholic judges ought to recuse themselves from Capital cases, as their religious beliefs prevent them from enforcing the death penalty. The New York Times noted that in her 2017 confirmation hearing for the appeals court, Barrett reiterated that she would recuse herself in death-penalty cases but also added that “she had assisted Justice Scalia in capital cases as a law clerk.” The New York Times also notes that Barrett has “voted to allow executions to proceed.”
While Barrett’s personal convictions about the death penalty seem clear, her record is somewhat ambivalent, and it seems unlikely that she will challenge the court’s current handling of death-penalty cases and appeals.
Barrett is anti-abortion and says that abortion is “always immoral.” In 2018, Barrett joined a dissent supporting laws that required burial or cremation for fetal remains, and forbidding abortion based on “eugenic goals,” including the sex or ability of the preborn child. In that same year, though, Barrett “voted to uphold precedent” regarding Chicago’s “bubble zone” ordinance, which forbids sidewalk counselors from coming within eight feet of people who are in the vicinity of an abortion clinic.
Some argue that, although she has been vocal about abortion’s immorality, Barrett will uphold precedent regarding Roe and abortion rights more generally. During her confirmation hearing for the appeals court in 2017, Barrett contended that circuit courts are not allowed to challenge precedent established by the Supreme Court, and when asked if she would follow Supreme Court precedent even regarding abortion, Barrett responded “Absolutely I would.” A key question for Barrett’s work on the Supreme Court, then, is whether her respect for precedent will extend to the highest court.
The answer may be found in Barrett’s work on stare decisis, a legal doctrine that requires the courts to respect precedent. Barrett has written that, while stare decisis must be strictly followed in the courts of appeals, it is a “soft rule” in the Supreme Court. “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,” Barrett argues. It seems that, while Barrett sees precedent regarding abortion cases as binding to the lower courts, she would not see stare decisis as binding on the Supreme Court, leaving her open to challenge Roe.
Precedent aside, Barrett has made it clear that she does not see overturning Roe as the most effective way to eliminate abortion. When speaking to a group of Notre Dame students, Barrett noted the “emotional and physical difficulty” that come with an unwanted pregnancy and reminded her audience that the people who are most likely to get an abortion are those who do not have the means or support to raise a child. “I think supporting poor, single mothers,” Barrett told the students, “would be the best way to reduce the number of abortions in the U.S.”
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