What Amy Coney Barrett Said About Roe v. Wade As Decision Overturned

Ahead of the historic decision to overturn Roe v. Wade, Supreme Court Justice Amy Coney Barrett had argued that the abortion issue is still hotly debated across America and many disagreements remain.

She also argued that because of this, Roe v. Wade may not qualify as a super-precedent, a precedent that the Supreme Court could never overrule, according to some definitions.

Barrett made these comments before the Supreme Court ruling on Mississippi's Dobbs v. Jackson Women's Health Organization case. The case involved a dispute over a Mississippi law that would ban most abortions after the 15th week of pregnancy.

Amy Coney Barrett
Associate Justice Amy Coney Barrett stands during a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021. Amy Coney Barrett has previously spoken about whether she considered Roe v. Wade a super-Precedent Erin Schaff/Getty

The ruling in Dobbs v. Jackson Women's Health Organization was able to overturn the court's landmark 1973 ruling in Roe, which legalized abortion nationwide

During her time as a nominee to the Supreme Court in 2020, Barrett spoke about Roe v. Wade and suggested there were still challenges and disagreements about the ruling.

During a Senate Judiciary Committee hearing in 2020, Senator Amy Klobuchar referred to a law review article Barrett wrote, outlining her views on super-precedents.

Klobuchar went on to question why Barrett didn't consider Roe v. Wade to be among them.

"Is Roe a super-precedent?" Klobuchar asked.

"How would you define 'super-precedent'?" Barrett replied.

After Klobuchar replied she was asking Barrett that question, she replied that "people use 'super precedent' differently."

Barrett continued: "The way that it's used in the scholarship and the way that I was using it in the article that you're reading from was to define cases that are so well-settled that no political actors nd no people seriously for their overruling.

"And I'm answering a lot of questions about Roe, which I think indicates that Roe doesn't fall in that category.

"And scholars across the spectrum say that doesn't mean that Roe should be overruled. But descriptively, it does mean that it's not a case that everyone has accepted and doesn't call for its overruling. I don't..."

Klobuchar went on to question why Barrett had said Brown v. Board of Education, the 1954 ruling that outlawed racial segregation in public schools, was a super-precedent when the Supreme Court had not openly said it was.

"So if you say that, why won't you say that about Roe v. Wade, a case that the court's controlling opinion, in that Planned Parenthood v. Casey case, has described as a super-precedent? That's what I'm trying to figure out, Klobuchar added.

Barrett replied while partially repeating her answer.

"Well, senator, I can give you the same answer that I just did. I'm using a term in that article that is from the scholarly literature.

"It's actually one that was developed by scholars who are, you know, certainly not conservative scholars—who take a more progressive approach to the Constitution.

"And again, you know, as Richard Fallon from Harvard said, Roe is not a super-precedent because calls for its overruling have never ceased.

"But that doesn't mean that Roe should be overruled; it just means that it doesn't fall on the small handful of cases like Marbury v. Madison and Brown v. the Board of Education that no one questions anymore."