Statement: Judge Amy Coney Barrett Nominated to the Supreme Court

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Statement from Nancy Northup, President and CEO of the Center for Reproductive Rights on President Trump’s Nomination of Judge Amy Coney Barrett to the U.S. Supreme Court  

Just one week ago, the American people lost a champion of equal justice under law with the passing of Justice Ruth Bader Ginsburg. She understood how critical legal rights are to unwedge oppressive structures that exacerbate societal inequalities. She fought to dismantle sex discrimination and understood that women must have control over their fertility and receive fair treatment during pregnancy if we are to achieve gender equality. Justice Ginsburg’s passing comes on the cusp of a presidential election, in the middle of a pandemic and economic crisis, and a national moral reckoning over the nation’s past and present manifestations of racial oppression.  

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 involve 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 his promise. 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. 

It is imperative that no nominee be confirmed who would overturn or gut the constitutional protections for abortion access. One in four women in the U.S. will make the decision that ending a pregnancy is the right decision for her.  The overwhelming majority of Americans do not want to see Roe overturned or hollowed out into a meaningless shell.  They understand, as has been articulated by the Court, that the Constitution guarantees to each person the right to make the “most basic decisions about family and parenthood” because these are “choices central to personal dignity and autonomy.” 

The stakes are extraordinarily high for health care at large and the rights of all. The President has also vowed to end the Affordable Care Act (ACA), which has substantial protections for women’s health, including requiring that health insurance plans cover maternity care, provide contraception without a copay, do not charge women more for insurance premiums, and do not exclude coverage for pre-existing conditions, such as cesarean sections, domestic violence, or breast cancer. This Supreme Court term, the Court will decide whether it agrees with the Trump Administration that the ACA is unconstitutional, a position that could mean millions of Americans lose their health insurance in the middle of a pandemic.  

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.