Amy Coney Barrett cannot run from record [Opinion]

Amy Coney Barrett can’t run from her record at next week’s hearing. We know where she stands.

While the nation continues to reel from the COVID-19 pandemic, starting Monday, Sens. Mitch McConnell, Lindsey Graham, and the rest of the Senate majority will move forward with their rushed, illegitimate confirmation process of Judge Amy Coney Barrett with a Senate Judiciary Committee hearing. They will do this despite the clear danger COVID-19 poses to senators, staff, the nominee, and all of their loved ones. They will do this despite the clear messages from the American people that they want the Senate to prioritize COVID-19 relief, and that whoever is elected president in November should fill Justice Ginsburg’s seat. They will do this despite the fact that Amy Coney Barrett’s views are dangerously out of touch with most Americans’ and she holds positions that will be a direct threat to our lives and rights, including our health care and reproductive and sexual freedom.

But despite the high stakes of next week’s hearing, we don’t expect too many fireworks. As we saw during her confirmation hearing for the 7th U.S. Circuit Court of Appeals, Barrett is a careful witness, who like many judicial nominees before her, will avoid taking specific positions on past and potential cases. But we don’t need a sound bite from Judge Barrett on Roe v. Wade or the Affordable Care Act (ACA) to know where she stands. Her record is crystal clear: She poses a direct and immediate threat to our reproductive health and rights and access to quality, affordable health coverage.

President Donald Trump has made it plain that he would only appoint justices who would overturn Roe v. Wade and strike down the ACA. With Judge Barrett’s record, it’s obvious she passes Trump’s litmus test. Her views are particularly dangerous while the country is in the middle of multiple public health crises, and with multiple health-related cases on the horizon. The Court is set to consider the Trump-supported lawsuit against the ACA the week after the election, and 17 abortion-related cases are just one step away from the Supreme Court — the threats a Justice Barrett would pose to our health and rights are very real.

No matter what Judge Barrett says this week, here is what you need to know about her record:

Barrett is an active and vocal threat to reproductive health and rights and has suggested that Roe v. Wade was wrongly decided. Yet 77% of the country supports the right to safe, legal abortion established by Roe.

• Barrett’s hostility toward abortion rights is not in dispute. On the anniversary of the Roe v. Wade decision, she signed a newspaper ad opposing abortion. The ad referred to Roe v. Wade’s legacy as “barbaric,” and demanded a return to legislation that prohibits abortion. The ad was created by a group that opposes in vitro fertilization and believes doctors who perform abortions should be criminalized.
• In a public speech, Barrett said that Roe “created through judicial fiat a framework of abortion on demand” that “ignited a national controversy.”
• As a judge on the 7th U.S. Circuit Court of Appeals, Barrett’s rulings demonstrate that she might be a reliable vote in favor of restricting abortion access. She has voted to rehear cases involving abortion restrictions in which other judges had previously held the abortion restrictions at issue were unconstitutional.
• She has written that abortion is “always immoral,” and that women who have abortions are “acting with gross unfairness.”
• With 17 abortion cases just one step from the Supreme Court, Barrett’s anti-abortion views could have a grave impact on abortion access in this country. Access to abortion is hanging by a thread across the country, and for too many people — particularly Black and Brown communities forced to navigate a legacy of systemic racism and discriminatory policies — the promise of Roe is already meaningless because abortion is inaccessible. These cases could dismantle what is left.

Judge Barrett has strongly criticized major decisions upholding the Affordable Care Act — the biggest advancement for women’s health and sexual and reproductive health in a generation. The stakes could not be higher, as the Supreme Court will hear a case on the Trump-supported lawsuit to dismantle the ACA one week after Election Day.

• If confirmed, Barrett could put access to health coverage and care in jeopardy for tens of millions of people across the country, in the middle of a pandemic.
• Barrett publicly criticized the 2012 Supreme Court decision that upheld the law, writing, “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute.” In 2015, on a critical Supreme Court decision, Barrett agreed with the dissenters (including Justice Scalia) who would have put an end to a core component of the ACA, saying in an interview, “I think the dissent has the better of the legal arguments.”

Judge Barrett has also been critical of the ACA’s requirement that all health plans include no copay birth control coverage, signing a letter that misleadingly referred to contraception as including “abortion-inducing drugs.” This ACA provision has ensured birth control coverage with no out-of-pocket costs for more than 60 million people.

Barrett’s writings suggest she believes that judges should not respect precedent where there is a conflict with their judicial philosophy.

• Barrett has referred to the late Justice Scalia, who was a staunch originalist, as having an “incalculable influence” on her. Upon accepting Trump’s nomination, Barrett said about Justice Scalia, “His judicial philosophy is mine too.”
• Justice Scalia’s judicial philosophy led him to reject decades of established precedent that recognized the Due Process Clause in the Constitution as protecting substantive liberties, such as the right to contraception, abortion, or marriage equality. Indeed, Justice Scalia never voted to strike down an abortion restriction.
• In Scalia’s dissent in Planned Parenthood v. Casey, he wrote, “The issue is whether [abortion] is a liberty protected by the Constitution of the United States. I am sure it is not” and that “Roe was plainly wrong.”

The Supreme Court is vital to the protection of our health, safety, rights, and democracy. That includes ensuring equal rights for women and for safeguarding reproductive freedom. Given the unprecedented attacks on reproductive health and rights at the federal and state levels, it is imperative that any nominee to the Supreme Court be ready to protect our rights against attacks. It is clear Amy Coney Barrett is not that person. This is the people’s seat, and Planned Parenthood Action Fund is calling on the Senate to immediately stop the confirmation process until after the 2021 inauguration.