By Loren Jacobson
Science cannot tell us when life begins; instead, our understanding about the mystery of life is informed by our religious beliefs. For this reason, when Justice Ruth Bader Ginsburg was on the Supreme Court, she emphasized that, when it comes to deciding whether a woman should have a constitutionally protected right to terminate a pregnancy, her destiny “must be shaped … on her own conception of her spiritual imperatives.” The confirmation of Amy Coney Barrett to the Supreme Court means that the Constitution will no longer protect each woman’s ability to decide, based on her own religious views and in consultation with her doctor, family, and rabbi, whether to terminate a pregnancy. Instead, one woman’s religious and personal views of abortion — Amy Coney Barrett’s — will control whether the Constitution protects the personal and religious liberty of all women.
Currently, under the Court’s decision in Roe v. Wade, women in the United States have a constitutionally protected liberty interest to decide whether to terminate their pregnancies. This means that states may only enact laws that do not “unduly burden” women’s ability to get an abortion. While this “undue burden” standard has allowed states to significantly restrict women’s access to abortion, abortion is, and currently must be, legal in all 50 states.
The elevation of Justice Barrett to the Supreme Court puts this right at risk. Despite her vague denials during the confirmation hearings, I am convinced that Justice Barrett will be the fifth vote to overturn Roe v. Wade. In a 1998 law review article, then–Professor Barrett wrote that “abortion … take[s] away innocent life” and “is always immoral.” In that same article, she acknowledged that a judge’s religious views could bias her decision-making. She therefore suggested that Catholic judges recuse themselves in death penalty cases, based on the idea that a Catholic judge may not be impartial in such cases. Nevertheless, during her Seventh Circuit confirmation, she said that her personal views on abortion would have no bearing on the discharge of her judicial duties. While I’m skeptical about her change of mind with respect to whether judges can be impartial when it comes to strongly held religious views, we need not guess whether Justice Barrett’s religious beliefs will color her decisions related to abortion. Instead, we can look at her judicial philosophy, which happens to synchronize perfectly with her personal, religious views.
Justice Barrett is a proponent of originalism — an interpretive perspective that views the Constitution as immutable unless amended, meaning that a constitutional provision can be interpreted to mean only what those who wrote that provision intended it to mean. Of course, the Constitution says nothing about abortion. Instead, in Roe v. Wade, the Supreme Court interpreted the language in the Fourteenth Amendment that prohibits a state from depriving a person of “liberty” without due process of law to protect a woman’s liberty interest in making decisions about her life and body, including the decision whether to terminate a pregnancy. Justice Barrett’s originalist view of the Constitution prevents such an interpretation protecting the right to abortion, because the Constitution is silent on the issue, as were those who drafted the Constitution and the Fourteenth Amendment. Thus, unsurprisingly, Justice Barrett’s view of the Constitution — that it does not protect the right to abortion because it doesn’t say it does — harmonizes with her own personal, religious view that abortion is always immoral.
Justice Barrett has also made clear that she believes that it is “more legitimate for [a justice] to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.” In other words, Justice Barrett will have no qualms about overturning Roe v. Wade, which she believes conflicts with an originalist interpretation of the Constitution. She will thus leave it to the states to determine if a woman has a right to decide, based on her own religious and spiritual views, whether to have an abortion. And there is no doubt that when Roe v. Wade falls, a woman’s right to terminate her pregnancy will no longer exist in most Southern and Midwestern states, many of which have put in place six-week abortion bans and other draconian measures limiting abortion in anticipation of the demise of Roe.
In a speech that then–Professor Barrett made at Notre Dame Law School’s graduation ceremony in 2006, she urged the graduates to pray and “consult God” before making a career choice. Her appeal to the graduates to turn to God and their religion to make meaningful career and other life choices is admirable. Unfortunately, as a Supreme Court justice, she will take away many women’s ability to “consult God” and make their own decisions about what life means and what is best for themselves and their families.
Loren Jacobson is an assistant professor of law at UNT Dallas College of Law, where she teaches Constitutional Law, Health Care Law, Civil Rights Law, and Reproductive Rights.