Barrett on Abortion: ‘I Have an Agenda to Stick to the Rule of Law’

11 mins read


Supreme Court nominee Judge Amy Coney Barrett speaks during the second day of her Senate Judiciary committee confirmation hearing on Capitol Hill on October 13, 2020 in Washington, DC. (Photo by STEFANI RE

Supreme Court nominee Judge Amy Coney Barrett speaks during the second day of her Senate Judiciary committee confirmation hearing on Capitol Hill on October 13, 2020 in Washington, DC. (Photo by STEFANI RE

(CNSNews.com) – Supreme Court Justice Amy Coney Barrett refused to say Tuesday whether the landmark Supreme Court decision legalizing abortion Roe v. Wade was wrongly decided, because it would be wrong and violate the cannons of law for her to do, noting that the issue of abortion could come up before the high court as it did in the last term.

During the Senate Judiciary Committee confirmation hearing, Sen. Dianne Feinstein (D-Calif.) asked whether she agreed with her mentor the late Supreme Court Justice Antonin Scalia that Roe v. Wade was wrongly decided.

Barrett refused to say how she feels about the 1973 ruling that legalized abortion, using Supreme Court Justice Elena Kagan’s words to explain why she could not provide her opinion.
“So Senator, I do want to be forthright and answer every question as far as I can. I think on that question, you know, I’m going to invoke Justice Kagan’s description, which I think is perfectly put,” the judge said. 

“When she was in her confirmation hearing, she said that she was not going to grade precedent or give it a thumbs up or a thumbs down, and I think in an area where precedent continues to be pressed and litigated as is true of Casey, it would be particularly — it would actually be wrong and a violation of the cannons for me to do that as sitting judge,” Barrett said.

“So if I express a view on the precedent one way another whether I say or love it or hate it, it signals to litigants I might tilt one way or another in a pending case,” she added.

Feinstein repeatedly tried to press Barrett on the issue of abortion, but Barrett didn’t budge. 

“Senator, I completely understand why you are asking the question, but again, I can’t pre-commit 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,” she said.

At one point when Feinstein asked whether she believed that Roe v. Wade can and should be overturned, Barrett said, “I think my answer is the same, because, you know, that’s a case that is litigated. It could — its contours could come up again, in fact do come up. They came up last term before the court. So I think what the Casey standard is, and that’s just– it’s a contentious issue, which is I know one reason why it would be comforting for you to have an answer, but I can’t express views on cases or pre-commit to approaching a case any particular way.”

Here is a transcript of the exchange:

 

FEINSTEIN: Let me begin with a question the chairman touched on. It’s of great importance, I think because It goes to a woman’s fundamental right to make the most personal decisions about their own body. And as a college student in the 1950s, I saw what happened to young women who became pregnant at a time when abortion was not legal in this country. I went to Stanford, I saw the trips to Mexico, I saw young women try to hurt themselves and it was really deeply, deeply concerning. 

During her confirmation hearing before this committee in 1993, Ruth Bader Ginsburg was asked several questions about her views on whether the Constitution protects a woman’s right to abortion. She unequivocally confirmed her view that the Constitution protects a woman’s right to abortion and she explained it like this and I quote. The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. 

It’s a decision she must make for herself. When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choice, end quote. At one point our former colleague Orrin Hatch, then the ranking member of this committee, commended her for her being very forthright in talking about that, end quote. I hope — and you have been thus far. Be equally forthright with your answers. 

In Planned Parenthood of southeastern Pennsylvania versus Casey, justice Scalia, as was said earlier, joined the dissent, which took the position — and I quote — we believe that roe was wrongly decided and that it can and should be overruled, consistent with our traditional approach to stare decisis and constitutional cases. Do you agree with justice Scalia’s view that roe was wrongly decided? 

BARRETT: So senator, I do want to be forthright and answer every question as far as I can. I think on that question, you know, I’m going to invoke Justice Kagan’s description, which I think is perfectly put. When she was in her confirmation hearing, she said that she was not going to grade precedent or give it a thumbs up or a thumbs down, and I think in an area where precedent continues to be pressed and litigated as is true of Casey, it would be particularly — it would actually be wrong and a violation of the cannons for me to do that as sitting judge. So if I express a view on the precedent one way another whether I say or love it or hate it, it signals to litigants I might tilt one way or another in a pending case. 

FEINSTEIN: So on something that is really a major cause with major effect on over half of the population of this country who are women, after all, it’s distressing not to get a straight answer. So let me try again. Do you agree with Justice Scalia’s view that Roe was wrongly decided?

BARRETT: Senator, I completely understand why you are asking the question, but again, I can’t pre-commit 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. 

FEINSTEIN: Well, what I’m — as a person, I don’t know if you’ll answer this one, either. Do you agree with Justice Scalia’s view that Roe can and should be overturned by the Supreme Court? 

BARRETT: Well, I think my answer is the same, because, you know, that’s a case that is litigated. It could — its contours could come up again, in fact do come up. They came up last term before the court. So I think what the Casey standard is and that’s just it’s a contentious issue, which is I know one reason why it would be comforting for you to have an answer but I can’t express views on cases or pre-commit to approaching a case any particular way. 

FEINSTEIN: Well, that makes it difficult for me and I think for other women also on this committee because this is a very important case, and it affects a lot of people, millions and millions of women. And you could be a very important vote. And I had hoped you would say as a person you’ve got a lovely family, you understand all the implications of family life. You should be very proud of that. I’m proud of you for that, but my position is a little different. You’re going on the biggest court of this land with a problem out there that all women see one way or another in their life, and not all but certainly married women do and others, too. So the question comes what happens? And will this justice support a law that has substantial precedent now? Would you commit yourself on whether you would or would not? 

BARRETT: Senator, what I will commit is that I will obey all the rules of stare decisis, that if a question comes up before me about whether Casey or any other case should be overruled, that I will follow the law of stare decisis, applying it as the court has articulated it, applying all the factors: reliance, workability, being undermined by later facts and law, just all the standard factors, and I promise to do that for any issue that comes up, abortion or anything else I’ll follow the law. 



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