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Barrett may be open to reversing Roe v. Wade

42 Comments
By MICHAEL TARM

President Donald Trump’s nominee to the Supreme Court has expressed unease with some landmark rulings, including ones that established a right to abortion, and has suggested in her academic writing that she may be willing to reconsider those decisions.

The question of whether Amy Coney Barrett, a one-time clerk to former conservative Justice Antonin Scalia, would actually try to overturn Roe v. Wade, the high court’s 1973 ruling recognizing a woman’s right to an abortion, and other long-established precedents looms large as she heads into Senate confirmation hearings next week.

A review of Barrett's writings and speeches as a Notre Dame law professor for the 15 years before she became a federal appeals court judge in 2017 reveal a nuanced thinker cautious about stating her personal views. She has never said publicly she would overturn Roe, or other precedents expanding abortion rights.

But she has clearly left the door open to that possibility.

“Our legal culture does not, and never has, treated the reversal of precedent as out-of-bounds,” she said in a 2013 Texas Law Review article. She also describes the high-court tradition of heeding previous rulings, or precedent, as a “soft rule” and not “an inexorable command.”

Barrett, 48, has styled herself as the heir to Scalia, and in writing about Scalia’s judicial philosophy, she reveals her own.

To buttress her legal analyses, she nearly always brought up Scalia, for whom she clerked in the late 1990s. Moments after Trump named her at the White House to fill the seat vacated by Ruth Bader Ginsburg’s death, Barrett paid homage to Scalia, saying, “His judicial philosophy is mine, too.”

At the center of that shared philosophy is a strict form of constitutional interpretation called originalism, which Scalia championed. In deciding if a current law is unconstitutional, originalists put the focus on the original meanings of words in the Constitution.

Scalia criticized more liberal justices for creating new rights, like abortion, that he said the framers of the Constitution couldn’t have foreseen. He argued, as Barrett and other originalists have, that new rights should be extended by constitutional amendments, not by courts.

Scalia said in a 2012 CNN interview that the high court's finding in Roe v. Wade that the Constitution includes a right to privacy, and thereby protects a woman’s choice to have an abortion, “does not make any sense.” Neither, he said, do arguments by anti-abortion groups that abortion deprives fetuses due process rights.

“My view is regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad … the Constitution does not say anything about it,” Scalia said.

Scalia, who like Barrett was a Catholic, said the Constitution leaves the question up to the states.

“What Roe v. Wade said was that no state can prohibit it,” he said. “That is simply not in the Constitution.”

But Scalia often struck a pragmatic chord, warning that reversing some precedents could shatter trust in the Supreme Court. Barrett highlighted his caution about casting established precedent aside in a 2017 Notre Dame Law Review article. She quoted Scalia as saying: “I am an originalist. I am not a nut.”

“His commitment to originalism,” Barrett wrote in the same piece, “did not put him at continual risk of upending settled law. If reversal (of precedent) would cause harm, a Justice would be foolhardy to go looking for trouble. Scalia did not.”

But might she?

Barrett did agree with Scalia in her 2013 Texas Law Review article that legal chaos could ensue if justices overturn precedents on which courts, lawyers and the public at large have for so long relied.

“People,” she wrote, “must be able to order their affairs, and they cannot do so if a Supreme Court case is a ‘restricted railroad ticket, good for this day and train only.’”

But she has also suggested that Roe v. Wade and later rulings on abortion may not be in the category of precedents that are untouchable.

Controversy around cases like Roe pointed to the public’s rejection of the idea of “a permanent victor in a divisive constitutional struggle,” she wrote in the Texas Law Review article.

“Court watchers,” she added, “embrace the possibility of overruling, even if they may want it to be the exception rather than the rule.”

The staying power of precedents, she went on, is not necessarily in their support by courts but in the broad, popular acceptance of them.

Among several cases she described in the 2013 article as clearly immune from bids to overturn them was Brown vs. Board of Education, which found racial segregation in schools was unconstitutional.

“Scholars,” she said, “do not put Roe on the superprecedent list (the list of untouchable precedents) because the public controversy about Roe has never abated.”

Her critics say such arguments put Barrett outside the mainstream of legal scholarship.

“Barrett takes the extreme view, unsupported by virtually anyone in the legal community, that a judge does not have to adhere to precedent if she believes a case was wrongly decided,” the Alliance for Justice has said, saying it shows she is open to the possibility of reversing Roe v. Wade.

Jamal Greene, a professor at New York’s Columbia Law School, said Barrett could stop short of shooting down Roe v. Wade and other abortion-rights precedents — and still end up gutting them.

“There is room for someone like her who takes Scalia’s position to not vote to overturn precedent — but to never see any abortion restriction that she sees as unconstitutional,” he said.

While Barrett has suggested she is nearly perfectly aligned with Scalia, Greene said she may be farther to Scalia’s right and nearer to current conservative Clarence Thomas.

“Thomas’ position is that if a precedent was wrongly decided, then you vote to overturn it,” Greene said. “Justice Scalia distanced himself from that. … It sounds like Barrett is trying to associate herself with a position just short of Thomas’ position.”

© Copyright 2020 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed without permission.

©2020 GPlusMedia Inc.

42 Comments
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A president who lost the election by 2.9 million votes.

A Senate majority that got 15 million fewer votes than the minority.

A Supreme Court candidate who has views straight out of the 19th century.

Oy vey!

1 ( +5 / -4 )

We are all enjoying our lives because our mothers did not abort us.

-3 ( +2 / -5 )

Actually, there is nothing in the story to suggest ACB is planning to overturn R vs W. Just a lot of pie in the sky musings and conjecture.

However, if she did, it would help put an end to the most evil, inhumane immorality of our time.

-1 ( +3 / -4 )

However, if she did, it would help put an end to the most evil, inhumane immorality of our time.

Yeah, giving women control over their own bodies above the demands of men was as ridiculous as anyhing humans have ever done.

2 ( +6 / -4 )

Actually, there is nothing in the story to suggest ACB is planning to overturn R vs W. Just a lot of pie in the sky musings and conjecture. 

However, if she did, it would help put an end to the most evil, inhumane immorality of our time.

I completely agree with you, but it’s all just more liberal contrived hysteria to motivate their base, they know the SC won’t turn over Roe v. Wade, however, I think like with the dreaded mandate that they thankfully got rid of, I do believe there are other provisions where people can make arguments within this legislation that they can say it’s unconstitutional, they can challenge and win on scrapping certain parts of it, other than that, I don’t see the SC getting rid of the ACA.

-2 ( +2 / -4 )

Roe v Wade will never be overturned.

And all this speculation about how she might opine is ridiculous.

0 ( +1 / -1 )

Yeah, giving women control over their own bodies above the demands of men was as ridiculous as anyhing humans have ever done.

very virtuous indeed.

After you're done basking in the glow, do a little research into the lives of women who have had an abortion and the depression they deal with all their lives afterwards

0 ( +4 / -4 )

We are all enjoying our lives because our mothers did not abort us.

where in the constitution does it say men have power over womens bodies or vise versa.

majority of Americans support women right to choose

https://news.gallup.com/poll/1576/abortion.aspx

0 ( +1 / -1 )

To 1glenn: How would you define someone with "views straight out of the 19th-century"?

0 ( +1 / -1 )

@wtfjapan

We are all enjoying our lives because our mothers did not abort us.

where in the constitution does it say men have power over womens bodies or vise versa.

majority of Americans support women right to choose

I'm not commenting on the constitutional or public opinion aspects. I was just observing that it's wonderful that we are able to enjoy our lives because our mothers didn't abort us.

I think that's worth pondering about when deciding how we view this issue.

0 ( +2 / -2 )

But she has clearly left the door open to that possibility.

GATCHA!

Nice work MICHAEL TARM you’ve passed the JR. High School test of modern Journa, wait, modern propaganda.

-1 ( +1 / -2 )

We are all enjoying our lives because our mothers did not abort us.

True, but not everyone has been fortunate as we have to have won the lottery.

Like it or not, it's a woman's choice, and no "man", "woman", "government" or "court" should have the power to tell ANY woman, what to do with HER body!

2 ( +4 / -2 )

We are all enjoying our lives because our mothers did not abort us.

Speak for yourself.

0 ( +3 / -3 )

After you're done basking in the glow, do a little research into the lives of women who have had an abortion and the depression they deal with all their lives afterwards

When you're done virtue signalling, do you want to talk with the families of women who died because they had to have a back-alley abortion?

No?

Okay then.

-2 ( +3 / -5 )

where in the constitution does it say men have power over womens bodies or vise versa.

No one says or claims that, but at the same time, where does it say in the Constitution that it’s wrong for any conservative or Evangelical to champion the rights of those that can’t speak out.

majority of Americans support women right to choose

No, not the majority.

-3 ( +1 / -4 )

No, not the majority.

Oh?

Sixty-six percent of adults say they don't believe the Supreme Court should completely overturn the decision that established a woman's right to an abortion nationwide in at least the first three months of a pregnancy. Twenty-nine percent of adults say they do want the court to completely overturn the ruling.

https://www.nbcnews.com/politics/2020-election/poll-majority-adults-don-t-support-overturning-roe-v-wade-n1241269

2 ( +3 / -1 )

As ever, it's depressing to see all these old men against American women having control over their own bodies. No wonder the Taliban are supporting Trump in the election.

-1 ( +2 / -3 )

Oh?

Yes, sir.

https://apnews.com/article/dec1f82c4c630cb97ab7cefc58cf0866

0 ( +0 / -0 )

GATCHA! 

Nice work MICHAEL TARM you’ve passed the JR. High School test of modern Journa, wait, modern propaganda.

Slow down there, Speedy. This is going to take a bit of intellectual power to get through, so stick with me:

Amy Coney Barrett, President Trump's nominee to replace Ruth Bader Ginsburg on the Supreme Court, signed on to an ad that labeled the landmark Roe v. Wade ruling legalizing abortion as "infamous" in 2013, according to Bloomberg.

https://www.google.com/amp/s/www.businessinsider.com/amy-coney-barrett-supreme-court-nomination-judicial-questionnaires-2020-10%3famp

infamous

/ˈɪnfəməs/

Learn to pronounce

adjective

well known for some bad quality or deed.

OR

wicked; abominable

Combine that with this:

However, Barrett has written law review articles that outline arguments attorneys theoretically could use in trying to strike down that ruling [Roe v Wade] and other precedents, though the writings are analyses that don't urge specific action or say how she would decide specific cases. Among them: She cited legal experts who do not count Roe v. Wade among "superprecedents" – Supreme Court decisions that are so ingrained in American life that they can't be overturned.

https://www.google.com/amp/s/amp.usatoday.com/amp/5925860002

and she has clear left the door open to overturning Roe v Wade.

0 ( +0 / -0 )

All of you rightists that claim to be constitutional originalist clearly haven’t got a clue what the constitution actually says. Nowhere in the entire text of the constitution will you find the right to privacy, which Roe v Wade turns on. Hilarious!

Griswold v. Connecticut is the case in which SCOTUS created the right to privacy.

0 ( +0 / -0 )

https://apnews.com/article/dec1f82c4c630cb97ab7cefc58cf0866

This does not disprove that the majority of Americans believe abortion should be legal; it demonstrates that most don’t think late-term abortion should be legal.

1 ( +1 / -0 )

https://apnews.com/article/dec1f82c4c630cb97ab7cefc58cf0866

This isn't about Roe vs. Wade. Please think more carefully about what you're trying to say in future.

1 ( +1 / -0 )

Only eight states in the US do not ban late-term abortion. Those that do have exceptions for medical necessity, which must be demonstrated via the diagnosis of a doctor. This means the fear/outrage over late term abortion is manufactured and blown way out of proportion.

https://www.dailywire.com/news/these-8-states-allow-abortion-moment-birth-amanda-prestigiacomo

0 ( +0 / -0 )

This isn't a question of "men control over women's bodies", it's "someone control over SOMEONE ELSES BODY". Being able to abort a pregnancy should not be in question.

Consider you have a daughter. Consider she is 18. Consider she is raped and impregnated. Now consider you tell her she must carry to full term, and love and look after that unwanted child for the rest of her (*or it's) life. Now consider that you are an inhuman monster for doing this.

The right to abort is compassion, it is human, it is required, it is absolute. It is NOT a COMMAND, it it a RIGHT.

0 ( +1 / -1 )

Only eight states in the US do not ban late-term abortion. Those that do have exceptions for medical necessity

Which can be anything a women considers to be a medical necessity, a headache, mental disorder, there is No definitive criteria for having a late term abortion.

This does not disprove that the majority of Americans believe abortion should be legal; it demonstrates that most don’t think late-term abortion should be legal.

Well, we won’t need to worry now that Barrett will be on the SC that will come to an end, so I feel very good.

-3 ( +0 / -3 )

do you want to talk with the families of women who died because they had to have a back-alley abortion?

No?

Okay then.

Nah I'm good. Lets talk about that myth and how legal abortion actually increases, rather than prevents, the pain, suffering and exploitation of women.

https://afterabortion.org/the-truth-about-back-alley-abortions/

Okay then.

-1 ( +1 / -2 )

Go and have a look at aborted babies pictures with their limbs and heads torn off in the process- while they are alive.

-2 ( +1 / -3 )

Go and have a look at aborted babies pictures with their limbs and heads torn off in the process- while they are alive.

No, the person having the abortion can do that if they want, it's not anyone else business. I don't care if it upsets your delicate sensibilities, you're not the one having to live with the child forever. Abortion is not something dictated by society, it's a personal choice.

2 ( +3 / -1 )

No, the person having the abortion can do that if they want, it's not anyone else business.

Not when it comes to late term abortion.

I don't care if it upsets your delicate sensibilities, you're not the one having to live with the child forever. Abortion is not something dictated by society, it's a personal choice.

We get it, that’s not the argument, we are talking about late term and nothing justifies killing a fully developed child that can breath on its on in the 8-9th trimester.

-1 ( +0 / -1 )

Abortion is not something dictated by society, it's a personal choice.

Its a lie sold to women that devastates them for the rest of their lives.

In the vast majority of cases, its flat-out murder.

-3 ( +1 / -4 )

Its a lie sold to women that devastates them for the rest of their lives. 

In the vast majority of cases, its flat-out murder.

As is the death penalty, which is considered just fine by many governments.

You do NOT get to tell someone else how to live their life. You DO have the right to not like it, and you have the right to be pissed about it, but you do not have the right to tell someone to bring up a child that they do not want.

-1 ( +1 / -2 )

As is the death penalty, which is considered just fine by many governments.

Crimes committed by criminals that had the right to distinguish right from wrong, they choose their fate, a fetus didn’t.

You do NOT get to tell someone else how to live their life.

Late term and now with Barrett on the court, that will change.

You DO have the right to not like it, and you have the right to be pissed about it, but you do not have the right to tell someone to bring up a child that they do not want.

So liberals thinking murdering a fully developed and term child is ok, but smile when a conservative like Scalia dies....huh?

-1 ( +0 / -1 )

a fully developed child that can breath on its on in the 8-9th trimester

A fully formed child in the 8th or 9th trimester would be, let me see, 15 to 18 months old. A toddler.

A full-term pregnancy lasts 3 trimesters. (The hint is in the name - Latin tri- (three) and menses (month)

I'm not in favour of abortion, but when it's necessary, it's necessary and no business of anyone but the woman concerned, and the father if she wants him involved.

I much prefer the provision of proper sex education and the availability of reliable contraception - something the so-called pro-life crowd also tend to be against, preferring to rely on purity rings and abstention and not allowing for unforeseen illness and unviable foetuses.

Invalid CSRF

1 ( +1 / -0 )

A fully formed child in the 8th or 9th trimester

Full term up to the birth

I'm not in favour of abortion, but when it's necessary, it's necessary and no business of anyone but the woman concerned, and the father if she wants him involved.

I understand, but in the States you can have a late term abortion for any reason literally.

I much prefer the provision of proper sex education and the availability of reliable contraception - something the so-called pro-life crowd also tend to be against, preferring to rely on purity rings and abstention and not allowing for unforeseen illness and unviable foetuses.

That as well.

0 ( +0 / -0 )

No you can’t. 

That is absolutely not true.

Sort to tell hog bass,

Not at all

Essentially, Roe allowed abortion without any regulation in the first trimester of pregnancy, but made abortions in the second and third trimesters contingent upon demonstrated threats to the pregnant mother’s health. Along with rape and incest, therefore, medical necessity became the pathway to unrestricted abortion access. It should be noted that varying definitions of medical necessity for abortion have ricocheted along a continuum with consideration of a “broad range of physical, emotional, psychological, demographic, and familial factors relevant to a woman’s well-being” at one extreme and “conditions which place a woman in danger of death” at the other. However, while the occasional politician or news reporter will still indicate that late-term abortions are most often performed in the case of “severe fetal anomalies” or to “save the woman’s life,” the trajectory of the peer-reviewed research literature has been obvious for decades: most late-term abortions are elective, done on healthy women with healthy fetuses, and for the same reasons given by women experiencing first trimester abortions

No, when you make up things on JT,

Nice try as always....

Anyway, once she’s on the bench, at least that part will come to an end.

0 ( +0 / -0 )

Bass doubling down on making stuff up

Don't need to, I’m not the one that is sitting before Congress. I’m just happy she will be, I’m just a civilian that is excited about ACB.

For a few months until Biden adds 4 or 5 new justices then re-writes the law to limit the SC to that many.

Don’t worry, McConnell took out a contingency plan with over 300 plus judges in the lower courts, so at the very least it’ll be veeeery hard to get a lot of things passed, a trick the GOP learned from the Dems and if Biden does win he’ll hit a lot of roadblocks, so it’s all good.

0 ( +0 / -0 )

Which can be anything a women considers to be a medical necessity, a headache, mental disorder, there is No definitive criteria for having a late term abortion.

First off you are cherry picking one part of the abortion issue, and you are using the least used type of abortion to justify your opinion that YOU have the right to tell women what to do with their bodies.

How medevial of you! Is your wife bare foot in the kitchen too? Let me guess, you support husbands beating their wives too

But late-term abortions are also very rare. In 2015, more than 400,000 abortions took place in the US. Of those, just 5,597 (or 1.3%) happened on or after 21 weeks of pregnancy, according to the Centers for Disease Control and Prevention (CDC). The vast majority (91%) of abortions take place at or before 13 weeks of pregnancy.

You are arguing about 1.3% of the total number of abortions, those of which even an over whelming majority of PRO_CHOICE people are against

Republicans have recently made efforts to ban abortions as early as 15 weeks in Mississippi or six weeks in Missouri and Georgia (six weeks is so early that bans would effectively outlaw abortion altogether).

This is pure idiocy! And anyone who supports it, is as well!

https://www.theguardian.com/news/datablog/2019/mar/07/abortion-late-term-what-pregnancy-stage

0 ( +0 / -0 )

First off you are cherry picking one part of the abortion issue, and you are using the least used type of abortion to justify your opinion that YOU have the right to tell women what to do with their bodies.

But this is really the center piece of the entire abortion debate. It justifies the argument because it is the part that liberals hope attention is not given to this crucial part of the abortion argument, the old argument of telling women what to do with their bodies is falling on deaf ears, no one is denying them anything and no one is overturning Roe v. Wade, but there are provisions that will be brought forth to the SC and “late term” is the main one that will be challenged once Barrett is confirmed and I’m sure that part and this practice of terminating a full term child will see it’s justified end and it can’t come soon enough.

This is pure idiocy! And anyone who supports it, is as well!

Sadly, no it’s not.

https://eppc.org/publications/a-better-choice-than-late-term-abortion-perinatal-hospice-care/

0 ( +0 / -0 )

How can late term abortion be such a huge issue when it’s rarely used, only available in eight states, and only available in the other 42 states if there is a valid medical exception as determined by a doctor?

Answer: Manufactured outrage based on emotion instead of facts.

1 ( +1 / -0 )

bobOct. 13  11:04 pm JST

Abortion is not something dictated by society, it's a personal choice.

Its a lie sold to women that devastates them for the rest of their lives.

Wow Bob you're so smart being able to know exactly what the worlds women think and feel just from reading a few internet articles. I take my hat off to you.

0 ( +0 / -0 )

bobOct. 13  09:22 pm JST

do you want to talk with the families of women who died because they had to have a back-alley abortion?

No?

Okay then.

Nah I'm good. Lets talk about that myth and how legal abortion actually increases, rather than prevents, the pain, suffering and exploitation of women.

https://afterabortion.org/the-truth-about-back-alley-abortions/

Okay then.

You do realise that by banning women's right to choose a legal abortion, those who really want or need one might then be forced to have an illegal back-alley abortion. Banning stuff never makes it go actually go away, it just pushes it underground where it's unregulated and more dangerous. Shame on you.

0 ( +0 / -0 )

You do NOT get to tell someone else how to live their life.

Yet for some reason, you think it perfectly OK to end the life of the unborn without their consent.

0 ( +0 / -0 )

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