Abortion access took center stage within the first hour of the Senate Judiciary Committee’s questioning of Supreme Court nominee Amy Coney Barrett on Tuesday. That was no surprise; along with the Affordable Care Act and LGBTQ protections, it’s been one of the most contentious issues since President Trump nominated her. Trump has pledged to appoint justices that would overturn Roe v. Wade, the landmark case that legalized abortion nationwide in 1973.
The Judiciary Committee’s ranking Democrat, Sen. Dianne Feinstein (Calif.), who was second in the questioning lineup, started with a long introduction to the topic, describing watching other young women in the 1950s try to obtain illegal abortions. The issue is “of a great importance, because it goes to a woman’s fundamental right to make the most personal decisions about their own body,” Feinstein said.
When Feinstein pressed Barrett on whether she believed Roe was wrongly decided, Barrett responded that it would be wrong for her, as a sitting judge, to give a “thumbs up or a thumbs down” on precedent. “I can’t express views on cases,” Barrett said. “I can’t pre-commit.” That largely set the tone for the rest of the hearing: Barrett would not tell the senators how she might rule on an abortion-related case.
That contrasts with Justice Ruth Bader Ginsburg, whose death on Sept. 18 left vacant the seat that Barrett has been nominated to fill. Even as Barrett invoked Ginsburg in her refusal to answer questions about how she might rule on a case — the “Ginsburg standard” says impartial judges should give “no forecasts, no hints” — Ginsburg herself reaffirmed Roe in her own confirmation hearings in 1993. “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself,” Ginsburg said at the time.
It’s no secret that Barrett is antiabortion in her personal life. As an article in the Atlantic puts it, “abundant evidence” — from a lecture at the Right to Life club at the University of Notre Dame, where she was a law professor, to a letter she signed in the South Bend Tribune criticizing Roe’s “barbaric legacy” — “indicates that Barrett personally opposes abortion.”
But when pressed about how her personal views might inform her decision-making on Tuesday, Barrett was steadfast: “My policy views, my moral convictions, my religious beliefs do not bear on how I decide cases nor should they; it would be in conflict with my judicial oath,” she said.
As hearings continue into a third day, legal experts say they don’t expect any surprises in Barrett’s responses regarding Roe v. Wade. So we asked them what has stood out about Barrett’s answers on Roe, including her definition of “super-precedents,” so far. Here’s what they had to say.
Did any moments stick out to you in Tuesday’s hearings?
“I think that when Amy Coney Barrett held up that blank white sheet of paper, it was very symbolic, because it seemed to me that she had decided coming into those hearings that she was going to provide no information on the questions that I think people really have a right to know about before a person is seated on the Supreme Court for life. I thought she was incredibly evasive, not only on Roe v. Wade, but on a number of things that she could have offered a straightforward answer on so that the American public could’ve been informed.”
Aya Gruber, professor of law at Colorado Law at the University of Colorado
“From the very beginning, Dianne Feinstein obviously tried to get her to go on the record with something, and she didn’t, so she has clearly prepared well. She knows her own mind, she knows her writings, and she knows the proper role of the nominee. … I think it’s just how she presents herself — how poised and gracious and disarming she is, it becomes obvious that any attacks are just going to slide off.”
Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies at the Cato institute, a libertarian think tank
Were Barrett’s responses to questions about Roe v. Wade expected?
“Her non-answers were entirely expected.”
Lucinda Finley, professor of law at University at Buffalo School of Law
“I am deeply concerned that Barrett refused to answer Senator Feinstein’s question as to whether she [Barrett] agrees with Justice [Antonin] Scalia’s position in Planned Parenthood v. Casey, where Scalia says that Roe v. Wade was wrongly decided and should be overruled. Barrett says that she won’t ‘pre-commit’ and gives no answer after being asked twice. At one point, Barrett suggests that giving an answer would be evidence of her having an ‘agenda.’ This is specious reasoning; analysis, and taking a position on precedent, is not an ‘agenda.’”
Lolita Buckner Inniss, professor of law at Southern Methodist University Dedman School of Law
“Judge Barrett’s opaqueness in Tuesday’s hearing is consistent with other Supreme Court nominees who have preceded her when asked about their stance on the stability of Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) as legal precedent during confirmation hearings. However, she stated that she does not see Roe v. Wade as well-established law or super-precedent because it remains disputed despite strong public opinion in favor of maintaining the legality of abortion.”
Michelle McGowan, research associate professor at the University of Cincinnati
“We weren’t expecting her to really give an adequate response on Roe v. Wade, to share her actual stance. I think we were kind of expecting her to dodge the questions and refuse to answer.”
Erinn Martin, policy counsel for the Public Policy Project at the Lawyers’ Committee for Civil Rights Under Law
“I don’t think we’ve got anything from her in this hearing that weren’t apparent in her writings and speeches, which is expected, because nominees are coached and trained to stay with what they’ve said previously, and not to give previews or pre-commitments as to how they would rule on legal issues going forward.”
What was significant about how she answered about super-precedents?
A telling moment in Barrett’s testimony came during an exchange with Sen. Amy Klobuchar (D-Minn.), when the senator asked Barrett about which cases she defines as super-precedents — judicial rulings considered so fundamental that they cannot be overturned. As The Washington Post points out, Barrett was willing to call Brown v. Board of Education, which ordered the desegregation of public schools in 1954, a super-precedent, but left the question open when it comes to Roe.
“Despite cases [such as Roe v. Wade and Planned Parenthood v. Casey] having been decided for decades, legal challenges to the right to abortion persist, with several cases dealing with state-abortion restrictions making their way toward the Supreme Court. A Supreme Court with a conservative majority calls into question how settled legal precedents that established and reaffirmed access to abortion are. A recomposed Supreme Court with the addition of Judge Barrett has the potential to further complicate and restrict access to abortion care even if it does not overturn Roe v. Wade, including imposing stricter gestational age limits on abortion in the United States.”
“Her ‘super-precedent’ statement is obviously rehearsed and taken directly from the rehearsed statement to the same effect made by Justice [Brett] Kavanaugh in his hearing.”
“It’s definitely very concerning and troubling for us, because she doesn’t consider it settled law. Earlier this year, in the [June Medical Services v. Russo] case that came before the Supreme Court, you had Republican senators sign on to an amicus brief saying that it should be overturned.”
“The term ‘super-precedent’ from the academic perspective simply means the case is beyond legal doubt, it’s not really discussed or debated anymore. And just by the nature of Roe and abortions coming to the fore every time there’s a Supreme Court hearing shows that it is not beyond debate. As she said, that doesn’t mean that it should be overturned. In fact, she’s said in past speeches that it’s unlikely that the court will overturn it altogether.”
What other clues do we have as to how Barrett might rule on abortion-related cases?
“It’s pretty clear to everybody who’s been following the story that Amy Coney Barrett has extremely strong personal and religious views on abortion, and also has been pretty clear to exempt the Roe and Casey line of cases from this characterization of what is or isn’t super-precedent.”
“Her strongly articulated previous views on Roe as an erroneous and illegitimate decision, and on overruling precedents that a justice thinks do not comport with their view of the Constitution, are far more illuminating and predictive of how she will vote on the Supreme Court than any carefully crafted evasive non-answer at the carefully scripted hearings.”
“Democratic senators sounded the alarm bell for the public viewership that if confirmed, Justice Barrett’s personal and previous professional statements would heighten the risk of increased limitations on abortion in the coming years. In stating that she does not consider Roe v. Wade to be a super-precedent, confirmation of Judge Barrett to the Supreme Court and the outcome of these cases making their way toward the Supreme Court hold the potential to greatly diminish the ability for people to exercise reproductive autonomy and participate equally in social and political life.”
“Considering the litmus test we know about that President Trump has for his nominees that he would only appoint people who would overturn Roe v. Wade, and you have her raising that she doesn’t consider it settled law — it’s very troubling.”