Analysis

How Amy Coney Barrett Could Upend Abortion Rights

Law360 (September 30, 2020, 4:33 PM EDT) -- The potential confirmation of Judge Amy Coney Barrett to the U.S. Supreme Court is set to shift the balance of the high court on abortion rights and may ultimately unravel Roe v. Wade, the landmark decision protecting women's right to choose to have an abortion, legal experts say.

During her three-year tenure on the Seventh Circuit, Judge Barrett has left a thin but telling paper trail on how she might rule in cases concerning the constitutionality of state abortion restrictions, and numerous cases seeking review by the high court may open the door to eroding longstanding precedent.

While Judge Barrett has not directly written an opinion on abortion, her dissents in two separate cases appear to support imposing restrictions on the controversial procedure.

In addition, Judge Barrett in February 2019 was part of a majority Seventh Circuit panel decision upholding a Chicago ordinance that sets boundaries for advocacy outside of abortion clinics.

While Price et al. v. City of Chicago et al. indirectly dealt with abortion and the ruling favored restrictions on protests directly outside of clinics, the majority illustrated its appetite to take issue with Supreme Court precedent and indicated that several recent rulings have undermined the ordinance's legal foundation.

"The best indicator of how a judge will rule in the future is how they've ruled in a majority opinion or in a dissent," said Aziza Ahmed, a law professor at Northeastern University. "She has articulated a position that is against Roe and against being pro-choice. They are warning signs that she will rule that way as a Supreme Court justice."

Judge Barrett's History on Abortion Issues

In 2018, Judge Barrett sided with a dissent in an order denying en banc rehearing of a ruling that deemed unconstitutional Indiana's attempt to ban abortions based on a fetus's sex, race or disability, and to require aborted fetuses to be buried or cremated. And in October 2019, she voted with the minority in another order denying en banc rehearing of a decision upholding an injunction on a law entitling parents to be notified about a minor's intent to get an abortion.

Those cases are Planned Parenthood of Indiana and Kentucky Inc. v. Kristina Box et al. and Planned Parenthood of Indiana and Kentucky Inc. et al. v. Commissioner of the Indiana State Department of Health et al., respectively.

Although she did not write the dissents, her decision to join them speaks volumes because they didn't need to happen in the first place, said Leila Abolfazli, the director of federal reproductive rights at the National Women's Law Center.

"[The judges] didn't need to write those dissents," Abolfazli said. "It really was Judge Barrett and the other judges putting out — gratuitously — how they would have ruled."

Penned by Circuit Judge Frank Easterbrook and joined by Barrett, the dissent in the case involving the state's ban on abortions on the basis of a fetus's sex, race or disability made a direct assault on Planned Parenthood of Southeastern Pennsylvania v. Casey, the 1992 landmark Supreme Court ruling that affirmed Roe v. Wade in guaranteeing the constitutional right to abortion.

While Indiana didn't seek en banc review specifically for the abortion law, but rather on the fetal remains law, the dissent addressed it anyway. The judges said the Casey decision never dealt with whether states are required by the Constitution to allow modern-day "eugenics."

"None of the court's abortion decisions holds that states are powerless to prevent abortions designed to choose the sex, race and other attributes of children," the dissenting judges wrote, adding that neither Casey nor the rest of the Constitution deals with regulating a child's genetic makeup.

Although the Supreme Court declined in 2019 to grant Indiana's petition to review whether its prohibition against so-called discriminatory abortions is unconstitutional, Justice Clarence Thomas wrote that it won't be long before the Supreme Court will revisit the court's abortion jurisprudence by taking another look at Roe and Casey.

By attaching her name to that Seventh Circuit dissent, Barrett has aligned herself with Justice Thomas, who has said the high court "spiraled out of control" by protecting access to abortion and drastically curtailing state oversight, according to Abolfazli.

"This shows her inclination to go with the legal theories and arguments where the restriction on abortion is what is upheld," Abolfazli said.

Douglas D. Johnson, a senior policy adviser for National Right to Life, said the dissent made clear that the judges were not seeking en banc review of the "eugenic-abortion law."

"Easterbrook et al. were not advocating en banc review of that law, although the dissent expressed some skepticism that Supreme Court precedents clearly applied to such a law," Johnson said.

In October 2019, the dissent in the parental notification case appeared to side with Indiana in concluding courts should be cautious about assuming the worst-case scenario about how a law will play out before it takes effect.

Judge Barrett agreed that the full court should have lifted an injunction on the state law entitling parents to be notified of their unemancipated minor's intent to undergo the procedure.

"This case implicates an important and recurring issue of federalism: Under what circumstances, and with what evidence, may a state be prevented from enforcing its law before it goes into effect?" Circuit Judge Michael S. Kanne wrote in the dissent, which Barrett joined. "Given the existing unsettled status of pre-enforcement challenges in the abortion context, I believe this issue should be decided by our full court."

That dissent was notable for its implications on precedent as opposed to the nuts and bolts of the parental notification law in particular, said Mary Ziegler, a law professor at Florida State University.

"This is an effort to get the court to start rethinking precedence when it comes to abortion," Ziegler said.

Abolfazli, meanwhile, said the short dissent ignored key evidence discussed in the district court opinion about the harm faced by young people who feel they can't tell their parents they intend to get an abortion.

And while the district court discussed Roe and Casey, analogizing the parental notification requirement to a requirement that a woman notify her spouse prior to an abortion — which the Supreme Court said would create an undue burden and therefore was unconstitutional — the circuit judges in the dissent eschewed those issues, Abolfazli said.

"The dissent was rejecting that clear evidence," she said. "It takes a real rejection of lived experiences to come to that conclusion."

But Judge Barrett's two dissents don't present the clearest picture of how she would rule on abortion, Johnson said, as she never actually reached a judgment on whether the laws were constitutional.

"The most we can say without speculation or extrapolation is that Judge Barrett was in doubt as to whether Supreme Court precedents condemned those laws, and on the parental notification provision, she clearly felt that the question of whether the law should be enjoined without any record of its actual effects deserved the attention of the full court of appeals," Johnson said.

Judges' opinions often change once they join the high court, Ziegler said, adding that the dissents don't suggest how far she would go in scaling back abortion rights. While Barrett could bolster Justice Thomas' more forceful attempt to undo Roe, she could also conceivably join Chief Justice John Roberts and Justice Brett Kavanaugh, who have opted for a more gradual approach to dialing back Roe.

Which conservative wing she chooses to occupy is unknown, but the same practical impact might ultimately result in overturning Roe, Ziegler said.

Where She Could Leave Her Mark

Several cases making their way up to the high court could serve as a vehicle for a Justice Barrett to make an impact on reproductive rights.

In June, the state of Mississippi asked the Supreme Court to review a Fifth Circuit decision blocking a 15-week ban on abortions after the detection of a fetal heartbeat.

And in August, the Food and Drug Administration urged the justices to undo an injunction backed by the Fourth Circuit that requires the agency to increase access to the so-called abortion pill. Either of those cases could begin the process of chipping away at abortion protections, legal experts said.

"Once she's on the court, I wouldn't be surprised if the court says, 'Alright, we'll look at these cases,'" said Sonia M. Suter, a law professor at George Washington University. "Maybe they don't overturn Roe right away, but this could be one more chipping away at it by saying, 'Oh, it's just about a particular kind of abortion, not all abortions.'"

If the court takes up the challenge to Mississippi's 15-week ban, the justices would be directly evaluating the very basis of Casey and Roe.

"To uphold the ban, you would have to go a long way at eviscerating the right [to an abortion] if not totally overturning the cases. That case would present them an opportunity to do so," Abolfazli said.

Robert Pushaw, a law professor at Pepperdine University, said that Judge Barrett likely thinks Roe was poorly reasoned and that the high court "created a new right to abortion that has no foundation in the Constitution's text, structure or history."

"The only real issue is whether Roe and Casey should be reaffirmed simply because they are precedent," Pushaw said. "As a circuit court judge, Barrett was duty-bound to apply Supreme Court precedent. As a justice, she would have to take that precedent seriously, but is not bound by it."

But whether a Justice Barrett would be the formidable fifth vote to consolidate the conservative block of the court is still an open question. A Justice Barrett could either join the court's more conservative wing and reduce Chief Justice Roberts' ability to keep the court in balance, or adopt the chief justice's more balanced approach on hot-button issues like abortion.

One of the most recent examples of how Chief Justice Roberts managed to balance the court — and where a Justice Barrett could potentially upend the equilibrium — was with his vote in the June 29 ruling in June Medical Services v. Russo , which struck down a Louisiana law requiring abortion providers to have admitting privileges at nearby hospitals.

In a 5-4 vote, Chief Justice Roberts joined the liberals to reverse a Fifth Circuit ruling that upheld the law, invoking the doctrine of stare decisis, or respect for precedent, to justify his vote despite having dissented in the 2016 case, Whole Women's Health v. Hellerstedt , in which the court struck down an almost identical Texas law.

Chief Justice Roberts agreed that the Louisiana statute was problematic, and clarified that the statute was clearly a substantial obstacle. The undue burden test isn't a cost-benefit analysis, as Justice Stephen Breyer's opinion suggested, but more about whether the statute itself imposes a burden that meets a threshold that makes it a substantial obstacle, the chief justice said.

"The chief justice was preserving the integrity of the court, but playing a long game that would slowly chip away at reproductive rights, rather than blatantly overturning Roe, which is, I think, something Roberts wants to avoid," Suter said.

But with a Justice Barrett on the court, if Roberts wants to continue to temper the court, he will have to join the majority now in order to ensure the opinion is less extreme, Suter said, adding that he will consequently have less power on the court.

"A Justice Barrett could take the reins of the court," Abolfazli said. "[The conservative justices] don't need Chief Justice Roberts to get to five votes. So she could really pull for other justices in a real conservative manner and some of the balancing Roberts has tried to do, especially in this last term, they could just ignore."

--Additional reporting by Michael Phillis, Hannah Meisel, Jimmy Hoover and Lauraann Wood. Editing by Philip Shea and Jack Karp.

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