Amy Coney Barrett's potential role in abortion battle surfaces in debates

When asked whether he would want his home state of Indiana to ban all abortions should Barrett’s presence help overturn Roe vs. Wade, the landmark 1973 Supreme Court ruling affirming the legality of a woman’s right to have an abortion, Vice President Mike Pence praised Barrett but did not directly address the question.

“For our part, I would never presume how Judge Amy Coney Barrett would rule on the Supreme Court of the United States,” Pence later said. “But we’ll continue to stand strong for the right to life.”

When asked whether she would want her home state of California to enact no abortion restrictions in such a scenario, Sen. Kamala Harris similarly demurred.

“I will always fight for a woman’s right to make a decision about her own body,” she ultimately said. “It should be her decision, and not that of Donald Trump and Vice President Michael Pence.”

The week prior, President Donald Trump and former Vice President Joe Biden also had referred to Roe in a debate that soon devolved into chaos.

“The President also is opposed to Roe v. Wade,” Biden said. “That’s on the ballot as well (as) in the court. … So that’s also at stake right now.”

Trump pushed back. “Why is it on the ballot? It’s not on the ballot,” he said, later adding, “There’s nothing happening there. And you don’t know her view on Roe v. Wade. You don’t know her view,” of Barrett.

The comments align with how activists on both sides of the abortion debate are framing the implications that the contentious battle over the late Justice Ruth Bader Ginsburg’s Supreme Court vacancy will have on Roe.

While overturning the ruling is not literally on the 2020 ballot, many abortion rights supporters decry Barrett’s ascent as synonymous with Roe’s inevitable death knell and a fate that only a Biden presidency or a left-pressured Senate could prevent. Anti-abortion activists, on the other hand, assert that her constitutionalist views are by no means a guarantee but more broadly increase their odds of weakening Roe — tea leaves that only time will tell.

“We’re not supporting her because we think that she’s some kind of a secret agent out to put Roe down,” said Steven Aden, chief legal officer and general counsel at Americans United for Life. “We support her because she’s a committed constitutionalist. We think that aligns with our view of the Constitution, but just as with other justices, we’ll have to wait and see if we’re right.”

Abortion opponents

Barrett’s track record on abortion from three years on the bench is limited but includes defenses of the restrictions she has reviewed, and she has left some clues. In a 2013 law review article, she cited public opposition to Roe as rejection of the notion that the judicial principle of “stare decisis,” meaning adherence to rulings in past cases, “can declare a permanent victor in a divisive constitutional struggle rather than desire that precedent remain forever unchanging.”

Her criticisms of abortion have often stemmed from religious grounds that Aden and others charge represent personal views separate from judicial intent. But these factors don’t guarantee an outcome, abortion opponents argue.

“He can’t possibly know, and neither can she, how she’s going to rule on a future case,” Marjorie Dannenfelser, president of the anti-abortion group Susan B. Anthony List, told CNN of Trump, adding that “he cannot prejudice her if a case does come up like that.”

“He promised pro-life Supreme Court justices, and that’s because his understanding of the Constitution, and ours, is that the rights of unborn children should be protected there,” she continued. “But that’s a very different thing than claiming how you think that’s going to unwind in a particular case coming.”

The President’s debate indignation over Biden’s assertion aligns with his prior moves keeping the specifics of Roe at arm’s length from his characterization of his nominee. Trump said late last month that he had not discussed Roe or other specific cases with Barrett before nominating her to the Supreme Court.

“I didn’t think it was for me to discuss that with her, because it’s something she’s going to be ruling on,” Trump said in a “Fox & Friends” interview last month.

This runs counter to Trump’s blunt assertions while campaigning in 2016 that he would “appoint judges that will be pro-life” to the Supreme Court and it would overturn Roe “automatically” if he appointed enough conservative justices.

Supporters of abortion rights

For abortion rights supporters, Pence, Trump and Barrett’s prior messaging is enough for them to think that Biden’s debate line — coming on the heels of last year’s slew of laws from state legislatures restricting abortion — rings urgently true.

“Roe v. Wade is most definitely on the ballot this November,” Jennifer Dalven, director of the American Civil Liberties Union’s Reproductive Freedom Project, wrote to CNN. The President and the Senate determine Ginsburg’s replacement, who “will determine the future of Roe and whether people in much of the country can get an abortion if they need one.”

“If the court overturns Roe, Congress and state lawmakers will have the power to determine whether we take this personal decision away from women and families and hand it over to politicians,” Dalven added.

Ilyse Hogue, president of NARAL Pro-Choice America, told CNN that “the combination of the legislative stakes, the political stakes and the judicial stakes mean that Roe is central to what people are voting on in November.”

“This is a tried and true strategy of Trump and the GOP. It’s sort of gaslighting women,” Hogue said. “He promised to only nominate justices that would end Roe and criminalize abortion, but when we’re in the middle of a confirmation hearing, he’s like, ‘You’re crazy! What are you talking about? Roe’s not under threat!’ We’ve been to this dance multiple times, and we take him at his word.”

Kelley Robinson, executive director of the Planned Parenthood Action Fund, pointed to Barrett’s record opposing abortion as well as the slew of anti-abortion bills that arose following Justice Brett Kavanaugh’s confirmation in 2018.

“They were enacting their playbook, which was a clear strategy to push bills through the courts that would have a pathway to the Supreme Court that would undermine and ultimately gut Roe v. Wade,” she said, later adding, “I think the choice is with voters to make sure that that doesn’t happen.”

Aden and Dannenfelser acknowledged increased odds of abortion outcomes preferable to their organizations simply by virtue of Barrett not holding Ginsburg’s views.

Their hopes haven’t always been realized, however. Chief Justice John Roberts, a conservative, notably sided with liberals to strike down a Louisiana abortion law in June. But he cited the undue-burden standard established in the landmark Supreme Court case Planned Parenthood of Southeastern Pa. v. Casey over more recent standards — a move that has been cited by lower courts in support of abortion restrictions.

“If that’s the kind of thoughtful judging you would get from this nominee or any other, I think it would be a significant improvement over the approach that the plurality, led by Justice (Stephen) Breyer and including Justice Ginsburg, set out,” Aden said.

Barrett “could decide against any of those (future anti-abortion laws before the court) because of different reasons, like how they were brought, standing, all sorts of stuff,” Dannenfelser said. “I don’t know how abortion law can ever change without some change in Roe. … I hope she is going to increase the odds that we’re able to make inroads around Roe somehow.”