September 26, 2020 – At this unprecedented time, and while the nation is still mourning and paying tribute to Justice Ginsburg’s tremendous contributions to advancing equality, President Donald Trump has nominated a replacement who would gut Justice Ginsburg’s legacy and turn back five decades of advancement for reproductive rights. The Senate Majority’s attempt to bulldoze this deeply troubling nomination through before the inauguration in January is unconscionable, an insult to the American public, an assault on the integrity of the Supreme Court, and a threat to critical constitutional rights. Americans need to make clear that their fundamental rights for generations to come will not be pawns in a political power grab.
In the three years that Judge Amy Coney Barrett has served on the U.S. Court of Appeals for the Seventh Circuit, she has ruled against abortion rights both times the issue was before her. The cases involved challenges to Indiana abortion restrictions, including one that bans abortion care if sought because of a fetal diagnosis or for reasons of sex or race. Judge Barrett joined an opinion which argued that “[n]one of the Court’s abortion decisions holds that states are powerless to prevent abortions” on grounds such as those in the Indiana statute. In fact, Roe v. Wade and the cases that follow are very clear that the government does not have the power to interrogate women or scrutinize their decisions to choose to end a pregnancy prior to viability. What is alarming is that Judge Barrett went out of her way to make the argument that states could ban abortion if they don’t like a woman’s reason, even though Indiana had not sought further review of the issue.
In a second case out of Indiana, Judge Barrett again joined an opinion that sought to review long-standing abortion rights law that clinics and doctors may challenge restrictive abortion laws before they go into effect.
President Trump has vowed to nominate to the U.S. Supreme Court only justices who will overturn Roe v. Wade “automatically.” With the nomination of Judge Barrett, the President is presumably making good on hispromise. Indeed, both of President Trump’s prior Supreme Court nominees failed to follow clear precedent in the most recent abortion rights case, June Medical Services v. Russo (2020), which the Supreme Court decided in June. Justices Brett Kavanaugh and Neil Gorsuch would have allowed a Louisiana abortion restriction to go into effect, despite the fact that an identical law from Texas was struck down as unconstitutional just four years before.
Since the election of President Trump, states have accelerated their decades-long campaign to end abortion services. While there have been over 450 abortion restrictions passed at the state level since 2011, recent years saw more extreme bans, including Mississippi’s ban on abortion at 15 weeks, a case which is now pending for review by the Supreme Court. Chillingly, there are dozens of abortion rights cases currently moving through lower federal courts heading towards the Supreme Court. Some are test cases to overturn Roe v. Wade or to render it meaningless by upholding laws that make abortion impossible to access. In the strategy to end abortion access in the U.S., courts are the linchpin.
The Supreme Court has a vital role in protecting and upholding civil rights and liberties – including reproductive rights – for everyone in the United States. We cannot barrel forward with a nomination that will impact people’s lives for generations.