Amy Coney Barrett's Political Views, From Abortion to Gay Marriage

Judge Amy Coney Barrett is President Donald Trump's nominee for the Supreme Court, replacing Justice Ruth Bader Ginsburg following her death on September 18. The nomination and looming confirmation vote have been a source of intense debate between parties due to its close proximity to the November 3 election.

Both Senate Majority Leader Mitch McConnell and Senate Judiciary Chairman Lindsey Graham are set to continue with Barrett's confirmation hearings starting on Monday, despite two Republican members of the Judiciary Committee testing positive for the coronavirus following the Rose Garden Ceremony on September 26. McConnell assured that the members who cannot join in-person can participate virtually, to the protest of the Democratic members of the committee.

Doubts about Barrett's nomination to the Supreme Court goes beyond her conservative political views—many Democrats have expressed concern regarding her strong Catholic faith, bringing to light key political issues including abortion rights and gay marriage. Several Republicans, on the other hand, have called out what they say is religious bigotry against the judge.

"This is the exact form that religious discrimination has taken in America for decades, especially when it's come to public service," said McConnell on the Senate floor earlier this month.

Judge Amy Coney Barrett
Judge Amy Coney Barrett Demetrius Freeman - Pool/Getty Images

In the cases that she considered during her three years on the federal appeals court in Chicago, Judge Barrett has a voting record that is almost entirely conservative in regard to issues such as gun rights, abortion and immigration. Newsweek has compiled a comprehensive list of Barrett's record and past comments that may indicate how her political leanings could play a role in Supreme Court decisions if she is confirmed.

Abortion

During the 2016 presidential campaign, Trump vowed that he would appoint justices to the Supreme Court who would overturn Roe v. Wade, a landmark legal decision that protects a woman's right to choose to have an abortion. The president already appointed conservatives Neil Gorsuch and Brett Kavanaugh—both in favor of restrictions on abortion—during his presidential term.

In a review of Barrett's writings and speeches as a Notre Dame Law professor and subsequent 2017-appointed federal appeals court judge, she has been careful to state her personal views and has not publicly stated that she plans to overturn Roe v. Wade.

Having worked under the late Justice Antonin Scalia, she echoed his warnings that reversing some precedents such as Roe would diminish trust in the Supreme Court and undermine the stability of constitutional law. In a 2013 Texas Law Review article, Barrett wrote that chaos could occur if justices overturn precedents on which legal teams and the public at large have relied on for so long.

"People must be able to order their affairs, and they cannot do so if a Supreme Court case is a 'restricted railroad ticket, good for this day and train only,'" she wrote.

However, that same article also suggests that Supreme Court justices aren't bound by precedents they disagree with. Abortion rights advocates refer to writings in the article that suggest Barrett's openness to overturning Roe and a rejection of the decision as a "precedent."

In reference to a legal doctrine that courts follow historical precedents, Barrett wrote: "If anything, 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 rather than desire that precedent remain forever unchanging."

This month, it was revealed that Barrett and her husband, Jesse M. Barrett, signed a 2006 newspaper advertisement in the South Bend Tribune calling for an end to the "barbaric legacy" of Roe, which ran on the anniversary of the 1973 Supreme Court decision. The ad was published by Indiana-based anti-abortion organization St. Joseph County Right to Life Group.

"We, the following citizens of Michiana, oppose abortion on demand and defend the right to life from fertilization to the end of natural life," the ad reads. "Please continue to pray to end abortion."

Barrett did not initially disclose the signed ad on the Senate Judiciary Committee questionnaire, which says to list all "published material you have written or edited, including material published only on the Internet, regardless of whether it was published in your name, another name or anonymously."

In an 11-page supplemental filing to the Judiciary Committee on Friday night ahead of her nomination, it was revealed that she signed a second "right to life" advertisement against the landmark Supreme Court decision. She said her name was included while a member of the "University Faculty for Life" group at Notre Dame Law School.

She also failed to disclose that in 2013, during her time as a law professor, she gave two lectures on Roe v. Wade during a seminar series co-sponsored by the anti-abortion group, Right to Life.

The judge has referred to abortion as "always immoral" and has a prominent anti-abortion rights judicial record. Since joining the Seventh Circuit Court of Appeals in 2017, Barrett ruled on two abortion cases considering three laws restricting abortion rights in Indiana.

In Box v. Planned Parenthood of Indiana and Kentucky Inc., Barrett joined dissenters to uphold an Indiana law that tightened the requirements for requiring doctors to notify the parents of minors seeking abortions. The court ruled to throw out the law, but Barrett joined an opinion stating that the ruling was premature and that the law should have gone into effect.

Barrett also joined dissenters in 2018 on two more Indiana laws involving abortion rights. She favored requiring abortion providers to bury or cremate fetal remains and banning abortions for reasons related to sex, race or disability, including life-threatening conditions. In 2019, the Supreme Court upheld the fetal remains law but turned down the state's appeal for the second law, citing that it violated Roe v. Wade.

In a 2016 lecture at Jacksonville University in Florida, Barrett spoke about the court upholding Roe, noting that she doesn't think that the core belief that women have a right to an abortion would change, but rather that "some of the restrictions" would change.

LGBTQ+ Rights

Barrett's devotion to her Catholic faith has brought into question how she would rule in regard to LGBTQ+ rights if they were presented to the Supreme Court. Although Barrett has never explicitly stated how she would rule when it comes to this topic, her past comments have made where she stands fairly clear.

In 2015, Barrett signed a letter titled "Letter to Synod Fathers from Catholic Women" sent to Catholic bishops to highlight the loyalty and "inclusive presence" of women in the Church. Not only does the letter further reinforce Barrett's views on abortion, explicitly stating "the value of human life from conception," it also suggests that marriage and sexuality should be between a man and a woman.

"We give witness that the Church's teachings... on the meaning of human sexuality, the significance of sexual difference and the complementarity of men and women...and on marriage and family founded on the indissoluble commitment of a man and a woman provide a sure guide to the Christian life, promote women's flourishing, and serve to protect the poor and most vulnerable among us," the letter reads.

Barrett briefly spoke about Obergefell v. Hodges, the landmark decision that guaranteed the right to marry for same-sex couples, during the Jacksonville University lecture. She suggested that the decision was not the court explicitly ruling in favor of or against same-sex marriage, but rather ruling whether states had the right to decide if that right was guaranteed. Barrett defended Chief Justice John Roberts' dissent, which said that the constitution didn't speak to the question and thus it wasn't the court's place to decide, but that people had the right to lobby in state legislatures to make same-sex marriage allowed within the state.

In the lecture, she also discussed the Title IX law—which prevents educational institutions that receive federal funding from discriminating on the basis of sex—that the use of male and female bathrooms by people who identify as a different sex than their physiological one is a "huge shift" from the prior interpretations of that statute that said separating bathrooms, locker rooms and showers on the basis of sex is acceptable.

She said that the transgender rights offered under Title IX is a "strain of the text," and since the original interpretation of the statute did not consider changes in modern ideas regarding transgender individuals, it is a "who decides" question on whether Title IX should be changed to explicitly detail transgender rights in the language.

"Maybe things have changed so that we should change Title IX," Barrett said during the lecture. "Maybe those arguing in favor of this kind of transgender bathroom access are right. ... But it does seem to strain the text of the statute to say that Title IX demands it, so is that the kind of thing that the Court should interpret the statute to update it to pick sides on this policy debate? Or should we go to our Congress?"

Earlier this month, two conservative Supreme Court justices, Clarence Thomas and Samuel Alito, released a four-page statement opposing the 2015 Obergefell v. Hodges decision following the Supreme Court's rejection of an appeal by former Kentucky County Clerk Kim Davis who denied marriage licenses to a same-sex couple after Obergefell.

The justices' words on the issue was a huge concern for the LGBTQ+ community and now puts the decision into question, especially in light of Barrett's nomination. If confirmed to the Supreme Court, she will be able to weigh in on the Fulton v. City of Philadelphia case, which questions whether private child welfare agencies that receive taxpayer money can refuse to work with same-sex couples.

Healthcare

If confirmed, Barrett will sit on the bench to hear the latest challenge to the Affordable Care Act, set to take place just a week after Election Day.

In 2012, before joining the appeals court, Barrett was critical of two Supreme Court decisions—NFIB v. Sebelius in 2012 and King v. Burwell in 2015—that largely rejected partisan attacks on the Affordable Care Act. She criticized Chief Justice Roberts' opinion sustaining a central provision of Obamacare.

"Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute," she wrote in a 2017 Notre Dame law review article.

While endorsing Justice Scalia's dissenting opinion in King that suggests the majority for attempting to rewrite Obamacare in order to save it, she writes, "For Justice Scalia and those who share his commitment to uphold text, the measure of a court is its fair minded application of the rule of law, which means going where the law leads."

"By this measure, it is illegitimate for the Court to distort either the Constitution or a statute to achieve what it deems a preferable result," she adds.

Also in 2012, Barrett was reportedly one of more than 100 scholars and religious leaders who signed a statement saying that an Obama-era policy requiring employee health plans to cover contraception was "a grave violation of religious freedom and cannot stand."

Death Penalty

While most conservatives support the death penalty, Barrett appears to be morally opposed. In 1998, she wrote an article alongside current president of the Catholic University of America, John H. Garvey, suggesting that Catholic judges should be able to recuse themselves from some cases involving the death penalty with the reasoning that it may conflict with their religious beliefs.

"The Catholic Church's opposition to the death penalty places Catholic judges in a moral and legal bind," the article reads. "While these judges are obliged by oath, professional commitment, and the demands of citizenship to enforce the death penalty, they are also obliged to adhere to their church's teaching on moral matters."

She upheld this belief during her 2017 confirmation hearings to the Court of Appeals, where she said that, while she assisted Justice Scalia in capital punishment cases as a law clerk, she would "recuse [her]self and not actually enter the order of execution" if she were to be a trial court judge in a death penalty case.

However, she has voted on death penalty cases while serving on the Seventh Circuit.

Second Amendment Rights

The four conservative judges on the Supreme Court, Justices Thomas, Alito, Neil Gorsuch and Brett Kavanaugh, have suggested in the past that they are eager to return to the subject of the second amendment and take a more expansive approach. While the court's conservative members may have been doubtful of securing Chief Justice Roberts' vote, adding Barrett may be just what they need to hear more cases on the matter.

Barrett sat on a three-judge panel during the Kanter v. Barr case, which involved a former felon stating that he had a right to own a gun under the Second Amendment. While two judges joined the opinion that the former felon was not exempt in being barred from carrying a firearm, despite the fact that he'd been convicted for mail fraud. The opinion by Judge Joel Flaum pointed to the 2008 Supreme Court decision, District of Columbia v. Heller.

Barrett dissented, stating that the "longstanding prohibitions on the possession of firearms by felons" should only "prohibit dangerous people from possessing guns" and therefore exempt people convicted of nonviolent crimes.

Her dissent drew on Justice Scalia's originalism, a legal theory that suggests that the Constitution should be interpreted as it was originally intended and understood.

"History does not support the proposition that felons lose their Second Amendment rights solely because of their status as felons," she wrote in her dissent. "But it does support the proposition that the state can take the right to bear arms away from a category of people that it deems dangerous."

Amy Coney Barrett's Political Views, From Abortion to Gay Marriage | News