Throughout two days of questioning, Trump’s Supreme Court nominee Amy Coney Barrett continually evaded and refused to answer Democratic senators’ questions on the threat her confirmation would pose to the Affordable Care Act (ACA) and Roe v. Wade. Despite those evasions, her record is clear that putting her on the Court in the late Justice Ruth Bader Ginsburg’s seat would be devastating to both.
On the ACA, Barrett continually claimed that she will not be anyone’s “pawn” and has no “agenda” to overturn the ACA. Before she became a judge, however, she severely criticized the Court’s 5-4 2012 ruling upholding the law in an opinion by Chief Justice Roberts, claiming that Roberts “pushed” the ACA “beyond its plausible meaning to save the statute.” As Senator Kamala Harris pointed out, it was only months after that article was published that President Trump nominated Barrett to a federal appellate court.
Barrett tried to suggest that what she said about the 2012 decision does not matter, because whether the Court strikes down the ACA in the case set to be argued shortly after the election will depend on whether the Court finds the challenged provision on the individual mandate “severable” from the rest of the law. In fact, as Senator Patrick Leahy and others pointed out, essentially the same issue was in the 2012 case: whether the entire law should be struck down if specific provisions were unconstitutional. According to Barrett’s article, if the ACA had been properly interpreted in 2012, the Court “would have had to invalidate the statute.”
So despite Barrett’s evasions at the hearing, her record is clear. If she is confirmed to the Court before the current challenge to the ACA is decided, she is very likely to vote “to invalidate the statute.” This is reinforced by other parts of her record, such as writings on statutory interpretation and her claim that the dissenters had the “better of the legal argument” in another Court ACA decision. Regardless of her attempts to evade, Barrett’s record makes clear that she will pass Trump’s litmus test of appointing justices who will vote to overturn the ACA, possibly as early as this year.
The same is true about Barrett passing Trump’s litmus test of nominating justices who will vote to overturn Roe v. Wade. Barrett consistently evaded or refused to answer questions about her views on Roe. She even refused to give her view on Griswold v. Connecticut, an earlier Court ruling recognizing constitutional protection for the right to privacy that even Trump justices Brett Kavanaugh and Neil Gorsuch agreed with during their Senate Judiciary Committee confirmation hearings. Yet again, Barrett cannot evade her record.
Specifically, Barrett signed letters in 2006 and 2013 that criticized Roe as infamous and barbaric and called for it to be overturned. In a 2003 article, Barrett suggested that Roe was “an erroneous decision.” In a 2013 article on precedent, she suggested that Roe was a “possibility” for overturning, and in 2017 she wrote that where a judge believes that a precedent conflicts with her understanding of the Constitution, “following precedent might sometimes be unlawful.”
Barrett and Republican senators both tried to claim that all this was irrelevant because it was in her private capacity. Besides the fact that this assertion contradicts the views of senators of both parties during previous confirmations, her record on the Seventh Circuit raises serious concerns as well. Barrett joined a dissent in one case that argued, contrary to Roe and an initial decision by three Republican-appointed judges, that a state should be able to prohibit an abortion based on why a person wants it—if it relates to the gender, race, or disability of the fetus. She also joined a dissent from a decision that upheld a preliminary injunction against what was effectively a state requirement that those under 18 obtain parental consent prior to obtaining an abortion, contrary to Supreme Court precedent. Conservative Reagan appointee Frank Easterbrook and Trump appointee Amy St. Eve disagreed.
Perhaps the best evidence on what Barrett is likely to do on Roe comes from one of the very Republican senators who tried at the hearing to downplay her earlier record, Senator Josh Hawley. Prior to these hearings, he has vowed to support only Supreme Court nominees who would overrule Roe, and has made clear that Barrett passes his test. She “understands,” according to Hawley, that Roe was “an act of judicial imperialism and wrongly decided.”
The Supreme Court could consider as soon as this term a case that could become a vehicle to overturn Roe. Despite her evasions and refusals to answer at the hearings, it is clear that Barrett could vote to do exactly that as early as 2020-21 if she is confirmed.