Bench Memos

Law & the Courts

Judge Barrett’s Record on Abortion

Nothing in Judge Amy Coney Barrett’s record provides any support for the charge that she would indulge her Catholic faith and her reputed pro-life convictions in deciding cases, and one of her votes cuts directly against such a charge.

During her three years on the Seventh Circuit, Judge Barrett has taken part in two proceedings involving state regulation of abortion. Both were decisions by the en banc Seventh Circuit whether to rehear panel rulings.

In Planned Parenthood v. Commissioner, the en banc court, by an evenly divided vote, denied Indiana’s request that it review the panel ruling that held that a state provision regulating the disposal of fetal remains was unconstitutional. Barrett was one of five dissenters. She joined an opinion by Judge Frank Easterbrook that pointed out that the panel had “held invalid a statute that would be sustained had it concerned the remains of cats or gerbils.” (See pp. 6-8.) On summary disposition (without even the need for oral argument), the Supreme Court reversed the panel ruling by a 7-2 vote. Justice Breyer and Justice Kagan were part of the majority.

In that same en banc proceeding, Judge Easterbrook (joined by Barrett and three others) stated that he was “skeptical” about the panel’s ruling on another question, the validity of an Indiana provision that prohibits abortions motivated solely by the race, sex, or disability of the fetus. The panel had ruled the provision invalid. Easterbrook opined that Supreme Court precedent did not clearly govern the question. He did not support en banc rehearing on that question, but instead said that he was “content to leave it to the Supreme Court.” (Some folks on the Left object to the fact that he used the shorthand “eugenics statute” for the provision. I’d counter that “anti-eugenics statute” would have been a better shorthand.) The Supreme Court denied review.

In the second proceeding (Planned Parenthood v. Box), the en banc court declined to rehear a divided panel ruling that invalidated an Indiana parental-notification law. (Specifically, that law provides that when a minor seeking an abortion obtains a judicial order exempting her from obtaining parental consent, the judge shall give notice to her parents of the planned abortion unless the judge finds that such notice is not in the minor’s “best interests.”) Of the 11 judges taking part in the en banc proceeding, four denied en banc review without comment, two others voted to deny en banc review on the ground that the Supreme Court, having made a mess in this area, should clean up its own mess, and five others dissented. Barrett joined the one-paragraph opinion for the dissenters. It reads:

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? Given the existing unsettled status of pre-enforcement challenges in the abortion context, I believe this issue should be decided by our full court. Preventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure.

In July, the Supreme Court sent the case back to the Seventh Circuit for further consideration in light of its ruling in June Medical Services v. Russo.

One other abortion-related case: Barrett was on a Seventh Circuit panel that ruled unanimously (in Price v. City of Chicago) that Chicago’s “bubble zone” ordinance, which (in the panel’s summary) “prohibit[s] any person from approaching within eight feet of another person near an abortion clinic for the purpose of engaging in the type of speech associated with sidewalk counseling,” is permissible under the Supreme Court’s ruling in Hill v. Colorado(2000). As the panel explained, the Chicago ordinance is indistinguishable from the Colorado law that the Court allowed in Hill.

The Court’s ruling in Hill was widely regarded as egregious when it was rendered—Harvard law professor Laurence Tribe called the case “slam-dunk simple and slam-dunk wrong”—and it has fared very poorly over the years. As the panel explained, recent Supreme Court rulings “have deeply shaken Hill’s foundation,” and Hill “is incompatible with current First Amendment doctrine.” Nonetheless, Hill “remains on the books and directly controls here.” More broadly:

The [Supreme] Court’s instructions in this situation are clear: “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case [that] directly controls, leaving to this Court the prerogative of overruling its own decisions.” Agostini v. Felton, 521 U.S. 203, 237–38 (1997) (quotation marks omitted).

That’s basically it. One newspaper article has asserted that Barrett, in her earlier career as an academic, “suggested Roe vs. Wade was an ‘erroneous decision.’” But, as I explain more fully here, that assertion is contradicted by the article it relies on.

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