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How Barrett’s confirmation could influence the fight over abortion access

Over her three-day confirmation hearing, Supreme Court nominee Amy Coney Barrett repeatedly declined to discuss her stance on abortion. But while there is no way to know for certain how she will rule on such cases, legal scholars say that her record, as well as a careful reading of certain answers she gave the Senate Judiciary Committee, gives clues about where the Supreme Court could be headed on issues of reproductive rights.

Barrett assured members of the committee that she would bring “no agenda” to her role if confirmed to the high court. She has also expressed anti-abortion beliefs in the past, and joined two dissents on abortion restriction cases during her time on the 7th Circuit Court of Appeals.

“I think what is really different about Judge Barrett’s nomination is that she has taken repeated, public positions about her legal views,” said Nancy Northup, president of the advocacy organization the Center for Reproductive Rights. While Barrett has vowed to keep her personal convictions separate from her judicial responsibilities, Northup said that Barrett’s personal opposition to abortion makes it more clear than other nominees how she would rule on a challenge to Roe v. Wade.

Anti-abortion advocate Clarke Forsythe of Americans United For Life said that should Barrett be confirmed, groups like his will continue to push restrictive laws in the hopes that “the court will take these cases up.”

President Donald Trump has for years made clear that he would appoint justices who will vote to overturn the federal protection for women to be able to choose to terminate a pregnancy, which was established by the 1973 ruling. Senate Judiciary chair Lindsey Graham’s praise of Barrett’s “unabashedly pro-life” stance also points to many Republicans’ hopes that, if confirmed, she will move the needle on the issue at the court.

Should Barrett replace late liberal Justice Ruth Bader Ginsburg, Florida State University College of Law’s Mary Ziegler said, her vote will cement a 6-3 conservative majority on the high court and provide “a kind of insurance policy” for anti-abortion activists hoping to see Roe overturned in the coming years.

But “making abortion illegal has never stopped abortion,” said Lucinda Finley, a law professor at the University of Buffalo. “What making it illegal does is further exacerbate the serious health inequities that already exist in our country.”

Here’s what experts say Barrett’s record tells us and what the fight over abortion access and reproductive rights looks like now.

What her record indicates

Prior to her nomination to the Supreme Court, Barrett served as a federal judge for three years, meaning there is limited data showing her judicial thinking on abortion, said Ziegler, who specializes in the legal history of reproduction and wrote “Abortion in America: A Legal History of Roe v. Wade.”

One case concerned an Indiana law that banned abortions for reasons related to race, sex or disability, and required abortion providers to bury or cremate fetal remains. After the law was struck down in 2018 by a three-judge panel, Barrett joined a dissent after a request for the case to be reheard by the full appeals court to consider its constitutionality was denied. In regards to the anti-discrimination provision of the law, the dissent likened having an abortion based on reasons related to race, sex or disability to “promo[ting] eugenics goals,” and argued that the Supreme Court had not yet addressed the question of whether abortions sought for these reasons were constitutional.

“The position they’re taking in this dissent violates the principle at the heart of Roe v. Wade,” Cynthia Daniels, a professor of reproductive rights and the law at Rutgers University, said, in that it sought to establish a pretext that a fetus’ personhood should be established prior to viability. Under the current legal standard established by Roe, fetal viability — the likelihood a fetus can survive outside of the uterus — can range from 24 to 28 weeks and must be determined on an individual basis, at the discretion of a patient’s physician. But some states have used different definitions to pass laws that ban abortions at 20 weeks or sooner, based on an unproven claim that a fetus can feel pain at this point in a pregnancy. If the argument in the 7th Circuit’s dissent held, it would have implications for such pre-viability bans, which have so far been blocked by the lower courts, according to Daniels. One such ban, which seeks to prohibit abortions at 15 weeks in Mississippi, could soon be heard by the Supreme Court.

“If the sex/race/disability ban were upheld by the Supreme Court, it would undermine the gold standard at the heart of Roe prohibiting bans on abortion before viability,” Daniels wrote in an email to the NewsHour, adding that such a decision would “open the floodgates for other pre-viability bans.”

Barrett joined a dissent on another Indiana law her court blocked that would have required minors to notify their parents of their decision to have an abortion. Again, the dissenters argued that the law should be reheard by the full court. The lower court’s ruling that blocked the parental notice law was thrown out by the Supreme Court in July, sending it back to the 7th Circuit Court for reconsideration. The appeals court has not yet said if it will rehear the case.

Ziegler said that in both of these cases, Barrett flouted legal precedent on abortion. “She’s shown a willingness…to sort of disregard precedent or at least underplay it,” Ziegler said, speculating that Barrett’s record as a judge suggests she wouldn’t be averse to doing so on the Supreme Court.

Barrett also signed a 2006 advertisement opposing “abortion on demand” that was placed by St. Joseph County Right to Life in the South Bend Tribune. The statement that appeared in the paper called for “an end to the barbaric legacy of Roe v. Wade,” and the restoration of “laws that protect the lives of unborn children.” But when speaking about Roe before a group of Notre Dame University students in 2013 of the landmark decision, but said the right to abortion would probably stand in the future.

“It’s possible [Barrett] might come under the sway of [Chief Justice] Roberts,” who is more moderate, should the Supreme Court consider a challenge to Roe, Daniels said. It’s also not certain that the court would consider overturning Roe soon after Barrett’s confirmation, she added. Instead, they may consider a series of moves over the next few years that further limit abortion access rather than ban the procedure nationwide.

READ MORE: What’s next for abortion legislation in the U.S.?

“I expect [her] — based on her past writings and on the petitions she’s supported, and by what she’s said in the hearings, and articles about when precedent can be overruled — to be a reliable vote for overruling Roe v. Wade,” Lucinda Finley said. She added that if Barrett is asked to consider the standard established by the case Planned Parenthood v. Casey — that states not impose an “undue burden” on women seeking abortion — Finley expected her to be a strict applier of it, and find that few restrictions constitute an undue burden.

While there was agreement among the legal experts who talked with PBS NewsHour that Barrett could be a vote against abortion protections, at her hearing she followed a precedent set by past nominees in not making specific statements that would indicate how she would rule on certain cases, or whether she believed rulings like Roe were wrongly decided. Throughout her testimony, Barrett repeatedly referred to the “Ginsburg rule” — referencing the late justice’s standard that a judge provide no hints, forecasts or previews of how they would vote on cases — as her reasoning for doing so.

Yet Ginsburg spoke more specifically than Barrett on issues such as abortion during her own 1993 Supreme Court confirmation hearing, affirming her support for women’s pregnancy decision-making — a fact that Democrats like California Sen. Kamala Harris emphasized. Pressed repeatedly during her confirmation hearing by Sen. Dianne Feinstein, D-Calif., as to whether she believes Roe was wrongly decided, Barrett said she couldn’t “pre-commit or say, ‘Yes, I’m going in with some agenda,’ because I’m not. I don’t have any agenda.” In another exchange with Sen. Patrick Leahy, D-Vt., Barrett said, “My personal views don’t have anything to do with the way I would decide cases.”

Forsythe, who serves as senior counsel for Americans United for Life, said Barrett maintained “objectivity and neutrality” throughout her confirmation hearing, and he would wait to see how she comes out on constitutional issues such as abortion once she’s actually sitting on the high court.

“Presidents can make all kinds of claims about their nominees, but Judge Barrett has made clear that she’s going to be independent-minded, and she’s not going to pre-judge cases,” Forsythe said.

But Ziegler argued that Barrett’s indication during the hearing that she does not consider Roe to be “super-precedent” — meaning it has been continuously re-affirmed and should no longer be challenged — was revealing, and suggested Barrett’s comments were made “with an eye to overturning Roe.”

What’s next for abortion rights?

Anti-abortion advocates like Forsythe have long argued that Roe is unconstitutional and should be overturned, leaving states to decide on abortion access.

If Roe were overturned, Sen. Ted Cruz, R-Texas, argued during Barrett’s hearing, “it would not suddenly become the case that abortion was illegal,” but rather return the question to state legislatures, as was the case for the nearly 200-year period that abortion was illegal in most of the U.S. “There are a great many jurisdictions, including jurisdictions like California and New York, who…would almost certainly continue unrestricted access to abortion,” even if it were not protected at the federal level, Cruz said.

“Overturning Roe would not ban abortion. But it’s also disingenuous to suggest that that’s somehow where this would end,” Ziegler said. “States’ rights is a waystation for pro-life activists, that’s not the goal.”

Should Roe be overturned, Ziegler said, she expected anti-abortion activists to focus on banning abortion in every state.

Forsythe said that “the ideal is to see that no prenatal human being is killed, and to see that there is no need for abortion.”

READ MORE: Supreme Court’s full decision on Louisiana’s abortion restriction

While abortion is source of passionate opinion on both sides of the issue, a majority of Americans support access to the procedure. A September poll by Marquette University Law School found that 56 percent of Americans opposed the Supreme Court overturning Roe, compared to 32 percent who favor striking it down.

If the federal right to an abortion were overturned, the Center for Reproductive Rights estimates that abortion rights would be protected in fewer than half of the states. Ten states, including Arkansas, Louisiana and Tennessee, have “trigger” laws that would automatically enact bans at the state level if Roe ended.

“[Republicans] know full well that states have been passing increasingly extreme restrictions even under Roe,” said the Center for Reproductive Rights’ Nancy Northup. “We know what will happen because those states will have put their cards on the table. And it will fall hardest on those who are least able to cross those state lines.”

Restrictions on abortion have always disproportionately affected women in poverty, Lucinda Finley said. Even before Roe, women of a higher socio-economic standing who could easily travel were often able to obtain safe abortions, while poor women turned to unsafe methods to end pregnancies. And that disparity remains today. A 2019 Washington Post analysis found that poor women of childbearing age were more likely than other women to have to drive more than an hour to reach the closest abortion provider.

When Ginsburg died, “those of us who have been studying reproductive rights and law said, ‘Wake up, America — for the most part, this is where we are already,” Rutgers’ Cynthia Daniels said. “The right to abortion is highly stratified already across the United States. There are women who have, in practical terms, very little access to abortion.”

A wave of laws banning abortion at 20 weeks or even as early as six weeks was passed by states within the past few years, but those have since been blocked by the lower courts. Other restrictions — such as waiting period requirements, parental consent laws and mandated counseling for patients — already make it complicated for some women to get an abortion in the U.S.

In Mississippi, the number of women going out of state for an abortion rose after a mandatory counseling and waiting period law was enacted. In Texas, where wait times increased after a 2013 law required abortion providers to have hospital admitting privileges, half of the state’s clinics closed (the law was later struck down by the Supreme Court). As of last year, more than 11 million women in the U.S. lived more than a one hour drive from an abortion clinic, due to restrictions that have forced many to close.

During the COVID-19 pandemic, a number of states sought to limit access to abortion by declaring it a nonessential or elective procedure. These state rules were ultimately blocked by the courts, but not before women in states such as Texas and Oklahoma were turned away.

Crystal Good testified in the hearing against Barrett’s confirmation by sharing how she had personally navigated restrictions. At 16 years old, she sought permission from a judge to get an abortion so that she did not have to ask her mother, who would not have approved. Although she did obtain permission from a judge to have the procedure, she said the process was overly cumbersome.

“Government restrictions on abortion — especially those not based in science or medical necessity — harm those of us who have fewer resources,” Good said in her Senate testimony.

“The impact of restrictions are harder on people of color, young people, people who are undocumented, people with disabilities, people living in rural areas, people with low incomes, and/or LGBTQ people.”

Legal experts said they thought Chief Justice John Roberts — who has expressed concerns about the increasingly partisan nature of the high court — would be loath to consider a challenge to Roe. But with a sixth solidly conservative justice, his vote will likely not be as significant.

“Barrett’s religion and her pro-life views have made her sort of a hero to pro-life Americans who assume she shares their convictions about Roe and will move to overturn Roe,” Ziegler said, adding that this has been especially important to Trump, who faced backlash from social conservatives over the summer after the Supreme Court struck down a Louisiana abortion law, and ruled that gay and transgender workers are protected by a federal discrimination law.

Ziegler said she expected a patchwork of abortion restrictions to be passed by state legislatures following Barrett’s confirmation, not unlike those passed following conservative Justice Brett Kavanaugh’s confirmation in 2018, in the hopes that one will make it to the Supreme Court. Abortion rights organizations, too, are preparing to challenge any new constraints, just as they have been for years.

Northup’s organization successfully litigated a case challenging the Texas law which placed restrictions on abortion clinics and was struck down by the Supreme Court in 2016. In addition to those state fights, she added that they would continue to push for the passage of the Women’s Health Protection Act by Congress, which calls for access to safe, legal abortion in the U.S.

No matter what, as the court makes its next shift, “There’s going to continue to be a lot of legal fronts to fight on,” Northup said.