November 29, 2020

What Will Happen to Roe v. Wade With Amy Coney Barrett on the Supreme Court?

7 min read

Justice Amy Coney Barrett has officially been confirmed to the Supreme Court of the United States, filling the seat once held by Justice Ruth Bader Ginsburg. Barrett was confirmed on Monday with a 52-48 Senate vote (the first time in 151 years a justice was confirmed with zero support from the minority party), eight days out from the November election.

While Barrett, who has now cemented the Supreme Court’s 6-3 conservative majority, is poised to rule on a number of issues that could affect our lives in the immediate—the Affordable Care Act, absentee ballot deadlines in essential swing states—when the nation first heard of Ginsburg’s passing, the future of Roe v. Wade was top of mind. President Trump previously promised to nominate judges with the intention of overturning Roe, the 1973 ruling that confirmed the constitutional right to abortion.

So now that Barrett is on the court, what does that mean for the future of abortion rights? Here, what you need to know.

Where does Amy Coney Barrett stand on abortion?

Barrett, a conservative Catholic, is known to be personally anti-abortion. She has said she believes “life begins at conception,” and in 2006, she signed her name to an ad that opposed “abortion on demand.” She is also an originalist, meaning she “interprets the Constitution according to the understanding of those who drafted and ratified it,” according to the New York Times.

In a 2013 law review article, she wrote: “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.” In 2016, NPR reports she said, “I don’t think the core case, Roe’s core holding that women have a right to an abortion, I don’t think that would change. But I think the question of whether people can get very late-term abortions, you know, how many restrictions can be put on clinics, I think that will change.”

Though Barrett, who joined the U.S. Court of Appeals for the 7th Circuit in 2017, does not have an extensive judicial record, according to Vox, she has twice voted in favor of abortion restrictions. (Read more about the specific cases, here.)

During her 2017 confirmation hearing for her seat on the Court of Appeals, the New York Times reports she said, “Roe has been affirmed many times and survived many challenges in the court. And it’s more than 40 years old, and it’s clearly binding on all courts of appeals. And so it’s not open to me or up to me, and I would have no interest in, as a court of appeals judge, challenging that precedent.” Then when asked whether Roe was “correctly decided,” she said, “I feel like I can’t, as a nominee, offer an opinion. I don’t want to give the impression that I would treat some precedents as more binding or more valuable than others.”

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Throughout her confirmation hearing for the Supreme Court, Barrett did not directly say how she might rule on Roe or abortion rights. However, as stated above, she’s made clear that she’s open to reversing precedent if she believes that decision is in conflict with the Constitution.

Nancy Northup, the president and CEO of the Center for Reproductive Rights, a legal advocacy organization, told ELLE.com: “The confirmation hearing made clear that Judge Barrett has the most extreme record and opposition to reproductive rights of any SCOTUS nominee in three decades.” She continued, “You can see it in her approach to Constitutional interpretation, you see it in her opinions on the Seventh Circuit, and she had vitriolic public advocacy defending the right to life from fertilization. That is a straight-on legal perspective that is not consistent with the Supreme Court’s jurisprudence recognizing that the right to access abortion and contraception is protected in the 14th amendment. I think states are going to open the floodgates for those that want to restrict access to abortion. They’re going to see this opportunity with her on the court.”

What could happen to Roe v. Wade with Barrett on the court?

It’s essential to note that abortion rights can be stripped away without Roe being overturned—and it’s already happening across the country. There are bans on when you can have an abortion, the type of abortion you can have, and barriers to access, like long waiting periods.

A number of states also have Targeted Regulation of Abortion Providers (TRAP) laws that advocates say chip away at abortion access and ultimately intend to shut down abortion providers. Planned Parenthood describes TRAP laws as “costly, severe, and medically unnecessary requirements imposed on abortion providers and women’s health centers,” such as creating building requirements for clinics or requiring abortion providers to have admitting privileges at nearby hospitals. For example, in 2016, the Supreme Court struck down a Texas law in the case Whole Woman’s Health vs Hellerstedt that would have required providers to have admitting privileges; even though the law was ultimately deemed unconstitutional, before the Supreme Court even ruled, it caused half of the state’s abortion-providing clinics to close. (Also, since these laws are introduced at the state level, it is essential to vote down-ballot in the upcoming election if you are concerned about electing pro-choice state leaders.)

When it comes to what Barrett could soon rule on, according to CBS News, there are 17 abortion-related cases that are one step from the Supreme Court. Two others have already reached the court, though it’s yet to be announced whether they will hear arguments for either case. One of those cases is a 15-week abortion ban in Mississippi that CBS reports challenges the core holding of Roe, which legalized abortion until fetal viability, usually around 24 weeks of pregnancy. (The Supreme Court, including Justice Barrett, will be considering that petition this Friday.) Northup said the 15-week abortion ban “is a straight-on challenge to Roe v. Wade” and that “the court cannot uphold it without reversing Roe v. Wade.” Beyond those 17, there are dozens of others cases currently making their way through the judicial system, including six-week abortion bans, which also present a direct challenge to Roe. (For more information, on what could happen in your particular state if Roe were to be weakened or overturned, check out the Center for Reproductive Rights’ interactive map, “What If Roe Fell?”)

When it comes to reproductive rights, we must also consider the issue of healthcare, especially as the Supreme Court is set to hear a challenge to the Affordable Care Act this November. “The Affordable Care Act has probably been the most significant advancement of women’s reproductive healthcare since Roe,” Northup said. As she explained, more people are covered under the ACA due to the Medicaid expansion and the affordability of insurance, meaning more are getting maternal healthcare. Insurance companies can no longer exclude people who, for example, have had C-sections from receiving pregnancy care, and the law’s no copay contraception guarantee allows many to get their choice of contraceptive without cost.

How to help:

  • According to Northup, this is now the “most conservative court on abortion rights, probably since Roe.” So what can you do? “The vast majority of the nation wants abortion to be safe and legal, and it really matters to make that support visible,” she said. “Everything from talking to family, friends, and co-workers, to making that support visible on social media, to making that support public with protests and being out there on the streets—all of those are very, very important. It matters the context in which this will be decided.”
    • You can also donate to an abortion fund, which assists patients in securing and paying for abortion care. The Cut has created an extensive guide to abortion funds in states considered “hostile,” meaning lawmakers will try to prohibit abortion if Roe falls, and states considered “not protected,” meaning places where abortion will not have legal protection if Roe falls. You can also find abortion funds across the country through the National Network of Abortion Funds.
      • Vote down-ballot in the upcoming election, and urge your representatives to support laws like the Women’s Health Protection Act, which would protect people’s access to abortion “by establishing federal statutory rights for providers to provide and patients to receive abortion care free from medically unnecessary restrictions and bans,” according to the Guttmacher Institute.

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