WASHINGTON — Judge Amy Coney Barrett, President Donald Trump’s latest nominee for the US Supreme Court, declined to say Tuesday how she’d rule on the hot-button issues central to the political fight over her nomination — abortion access, the future of the Affordable Care Act, LGBTQ rights, and legal fights over this year’s presidential election.
Barrett, a judge on the US Court of Appeals for the 7th Circuit, cited the past practices of Supreme Court nominees who declined to say how they’d rule in any given case, as well as ethics rules that limit what sitting judges can say about ongoing cases and legal fights; she said that she would go into the job of a justice with an open mind.
Democratic Sen. Patrick Leahy asked Barrett if she would recuse from cases related to the election, given President Donald Trump’s remarks that he expects the election to end up in the Supreme Court and that he was “counting on” the court to “look at the ballots.” Barrett declined to say what she’d do.
“I commit to you to fully and faithfully applying the law of recusal. ... I will apply the factors that other justices have before me in determining whether the circumstances require my recusal or not,” Barrett said. “But I can't offer a legal conclusion right now about the outcome of the decision I would reach.”
If confirmed, Barrett would be the third Supreme Court justice confirmed under Trump, joining Justices Neil Gorsuch and Brett Kavanaugh. She would fill the late justice Ruth Bader Ginsburg’s seat and deepen the court’s conservative majority to 6–3.
Barrett declined to tell the Senate Judiciary Committee on Tuesday how she would rule in response to questions about abortion, healthcare, and the other issues that Democrats and liberal groups have focused on in opposing her nomination. Unless at least four Republican senators break ranks, however, Democrats lack the votes to stop Barrett from being confirmed; Sen. Amy Klobuchar said during the first day of Barrett’s confirmation hearings that Democrats “don’t have some clever procedural way to stop this sham.”
Here is what we know about Barrett’s views on these issues based on her past writings, speeches, and opinions.
Before her confirmation to the 7th Circuit in 2017, Barrett spent most of her career as a law professor at Notre Dame Law School. In that capacity and as a private citizen, she expressed her opposition to abortion and Roe v. Wade, the landmark Supreme Court decision that established a national right to abortion.
In 2006, she was one of several hundred people who signed onto a statement that ran as part of an ad in a local newspaper in Indiana that called for “an end to the barbaric legacy of Roe v. Wade." In 2013, a campus newspaper at Notre Dame reported on remarks Barrett gave at an event about the 40th anniversary of Roe, where she talked about “her own conviction that life begins at conception.”
Barrett addressed the 2006 ad on Tuesday, saying that she signed onto the statement “on the way out of church — it was consistent with the views of my church and it simply said, we support the right to life from conception to natural death.” She drew a line between what she'd signed and the language that appeared in the newspaper called Roe "barbaric."
She defended her decision to not formally submit that 2006 statement as part of her background materials to the Senate Judiciary Committee, saying the committee questionnaire did not ask for something that she signed as a private citizen and not on behalf of any group. Barrett contrasted that with a statement she did submit to the committee that she signed in 2013 as a member of the University Faculty for Life group at Notre Dame that called Roe "infamous."
"We faculty and staff at the University of Notre Dame reaffirm our full support for our University's commitment to the right to life, we renew our call for the unborn to be protected in law and welcomed in life, and we voice our love and support for the mothers who bear them," the statement read.
California Sen. Dianne Feinstein, the ranking Democrat on the committee, asked if Barrett agreed with the late justice Antonin Scalia — Barrett clerked for Scalia and has said “his judicial philosophy is mine too” — that Roe should be overturned. Barrett said that it would be inappropriate and violate ethics rules for her to express an opinion about an area of law that’s still being litigated in court.
“I can’t precommit or say, ‘Yes, I’m going in with some agenda,’ because I’m not. I don’t have any agenda. I have no agenda to try to overrule Casey, I have an agenda to stick to the rule of law and decide cases as they come,” Barrett said, referring to Planned Parenthood of Southeastern Pennsylvania v. Casey, a Supreme Court decision in 1992 that clarified the standards for deciding if a state law put too much of a burden to a woman’s right to abortion under Roe.
“For any issue that comes up, abortion or anything else, I’ll follow the law,” Barrett said.
Minnesota Sen. Amy Klobuchar asked if Barrett considered Roe v. Wade “super precedent,” a term that Barrett had used as a law professor to refer to a small group of landmark Supreme Court decisions such as Brown v. Board of Education, which ended school segregation. Barrett said she’d used “super precedent” to describe cases that were “so well settled that no political actors and no people seriously push for their overruling.”
“I'm answering a lot of questions about Roe, which I think indicates that Roe doesn't fall in that category,” Barrett said. “And scholars across the spectrum say that doesn't mean Roe should be overruled, but descriptively it means it's not a case that everyone has accepted and doesn't call for its overruling.”
The Affordable Care Act
Democrats have focused their opposition to Barrett on what her confirmation would mean for the Affordable Care Act, since the Supreme Court is scheduled to hear arguments in the latest challenge to the law on Nov. 10. If Senate Republicans are able to move Barrett through the confirmation process as quickly as they plan to do — the committee is set to vote on Oct. 22 — she would be on the bench in time to hear that case.
In 2017, shortly before becoming a judge, Barrett wrote a law review article that criticized Chief Justice John Roberts Jr.’s vote to preserve Obamacare in 2012. In that case, NFIB v. Sebelius, the court ruled that the law could stand because the individual mandate — requiring people to either have health insurance coverage or pay a fine — was a tax. Barrett wrote that Roberts “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
In the case coming before the Supreme Court next month, Republican attorneys general and the Trump administration are arguing that when Congress repealed the tax penalty for the individual mandate in 2017, it invalidated the entire law.
On Tuesday, Barrett said it wouldn’t be appropriate for her to offer an opinion about a pending case. She noted that the core issues in the latest ACA case were different from the previous cases, however — the case is about whether the individual mandate is now unconstitutional without the tax penalty, and if so, whether the mandate could be struck down on its own or if the whole law had to fall with it. Barrett said she hadn’t written about the latter issue, known as severability, in the past.
As for whether she’d recuse, she told Senate Judiciary Committee Chair Lindsey Graham, “That’s not a question I could answer in the abstract.”
Responding to questions from Illinois Sen. Dick Durbin about the Affordable Care Act case, Barrett denied that she was “hostile” to the law as a whole.
“I think that your concern is that because I critiqued the statutory reasoning that I'm hostile to the ACA and that because I'm hostile to the ACA that I would decide a case a particular way, and I assure you that I am not. I am not hostile to the ACA, I'm not hostile to any statute that you pass,” Barrett said.
Responding to questions from Delaware Sen. Chris Coons about her critique of Roberts’ majority opinion in NFIB, Barrett replied: “I'm not here on a mission to destroy the Affordable Care Act. I'm just here to apply the law and adhere to the rule of law.”
Asked whether she agrees with the Supreme Court’s decision in 2015 establishing a nationwide right to marriage for same-sex couples, Obergefell v. Hodges, Barrett confirmed it was precedent but said she was “not going to give a thumbs up or thumbs down to any particular precedent.”
“I have no agenda and I do want to be clear that I have never discriminated on the basis of sexual preference and would not ever discriminate on the basis of sexual preference. You know, like racism, I think discrimination is abhorrent,” she said, referring to her previous answer when asked to discuss racism in the US. “On the questions of law, however, I just, because I'm a sitting judge and because you can't answer questions without going through the judicial process, I can't give answers to those very specific questions.”
LGBTQ rights advocates objected to Barrett’s use of the phrase “sexual preference” to refer to a person’s sexual orientation. Lambda Legal, an LGBTQ rights legal organization, tweeted that the term was “a dogwhistle ... used by opponents of equality to suggest that being #LGBTQ is a choice.”
Later in the hearing, when asked about using the term "sexual preference" by New Jersey Sen. Cory Booker, Barrett said she did not mean to imply that a person's sexual orientation is "not an immutable characteristic or that it's solely a matter of preference."
"I honestly did not mean any offense or to make any statement by that," Barrett said. "I fully respect all the rights of the LGBT community. Obergefell is an important precedent of the court. I reject any kind of discrimation on any sort of basis."
Barrett hasn’t ruled on cases involving LGBTQ rights on the 7th Circuit, but in October 2015, a few months after the court ruled in Obergefell, she signed on to a letter in advance of an assembly of Catholic bishops that expressed support for a host of Catholic teachings, including that marriage should only be between a man and a woman and opposition to abortion.
As a 7th Circuit judge, Barrett wrote in a dissenting opinion in March 2019 that the Second Amendment had been treated as a “second-class” right, echoing the sentiments of other conservative judges and gun rights advocates. In that case, Barrett wrote that she would be in favor of expanding the Second Amendment’s gun rights protections to certain nonviolent former offenders, splitting with her two colleagues in the majority.
Pressed by Durbin to explain that decision, Barrett said that based on her review of the history of gun rights in the United States, she concluded someone shouldn’t lose their right to have a gun solely because they were convicted of a felony crime.
“There had to be a showing of dangerousness,” Barrett said. She said it was possible the government could show that a person convicted of a nonviolent felony should still lose their right to have a gun, but, “I think we could all agree that we ought to be careful of saying that because someone’s a felon they lose any of their individual rights.”
It’s been a decade since the Supreme Court took up a major gun rights case. Earlier this year, Kavanaugh, Gorsuch, and Justices Samuel Alito Jr. and Clarence Thomas indicated they wanted the court to take up the Second Amendment again soon. Kavanaugh wrote at the time that he had “concern that some federal and state courts may not be properly applying” some of the court’s previous decisions establishing an individual’s right to have a gun at home.