As a woman, it may seem hypocritical not to want another woman on the Supreme Court to replace Justice Ruth Bader Ginsburg — a pioneer in women’s rights.
I do. I want another woman to join Justices Elena Kagan and Sonia Sotomayor on the bench. We need more women in high office.
But I want the next justice to be a woman whose views I respect, and who is chosen at the appropriate time given that we are on the verge of electing a new president whose job should include appointing the next justice.
Which brings me to Judge Amy Coney Barrett, whose writings I have read, and whose testimony I have followed, and who is high on the list of conservatives President Trump is considering nominating to the Court.
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It’s fair to say Barrett does not hide her judicial philosophy. As a clerk for Justice Antonin Scalia, who died in 2016, she adopted and espouses the view of “textualism” which means she is wedded to the notion that original statutes matter, including the timing of when a statute goes into effect, not the intentions of those who created the statute. It’s critical to understand her role as a" textualist "and “originalist” before questioning her views on controversial issues like reproductive rights.
And this is where things get tricky. As a supporter of reproductive rights, I share the fear that Barrett is a threat, but not in the way that many on the left are going to portray her. In short, it could be a stretch to automatically brand her as someone who would overthrow the 1973 Supreme Court decision Roe v. Wade without understanding the nuances of her coded phrases.
As a Supreme Court justice, Barrett might uphold Roe v. Wade on the grounds that it was argued and passed at a previous time and place that cements it in stone — but then she would probably gut it, hollowing it out with restrictions and rules that limit public funding and let states dismantle access.
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Barret is pro-life. No doubt about it. Barrett has spoken about her own conviction that life begins at conception and her written language reflects her view that the framework of the 1973 decision “essentially permitted abortion on demand, and Roe [v. Wade] recognizes no state interest in the life of a fetus.”
But she often obscures her positions in ways that could challenge her opponents to think she is quite reasonable. In an article she co-wrote in 1998 with John H. Garvey for the Marquette Law Review, she addressed the ethical concern of Catholic judges in ruling on capital punishment cases, concluding that judges should not use their moral opposition to the death penalty to sway decisions on that issue. But in that article she suggested that how Catholic judges behave in death penalty cases differ from issues such as opposition to abortion and euthanasia. “Abortion and euthanasia take away innocent life. This is not always so with war and punishment.” And she writes, “Like the ban on abortion which (properly defined) is always immoral.”
Despite her personal and religious opposition to abortion, Barrett has also suggested that overturning it would be difficult. At a 2013 event reflecting on the 40th anniversary of Roe v. Wade, she described the decision — in Notre Dame Magazine’s as “creating through judicial fiat a framework of abortion on demand.” She also remarked that it was “very unlikely” the court would overturn the core of Roe v. Wade: “The fundamental element, that the woman has a right to choose abortion, will probably stand. The controversy right now is about funding. It’s a question of whether abortions will be publicly or privately funded.”
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Progressives need to be careful in how they frame opposition to Barrett. She could easily try to thread a needle with her nuances and to draw liberals into a broadside attack that backfires. We cannot allow her to roll back progress on policies like the Affordable Care Act, based on her opposition to funding abortion and to get away with suggesting that Roe v. Wade can stand — but funding cannot.
So how can the messaging avoid her traps?
Instead of pointing to language from organizations like Planned Parenthood, which gets the pro-lifers uptight, go back to language from organizations like Amnesty International which explains reproductive rights simply as: “Whoever you are, wherever you live, all the decisions you make about your own body should be yours.”
Or go back to language from the United Nations explaining universal acceptance of the view that reproductive rights are grounded in a range of fundamental human rights guarantees, protected in both foundational human rights instruments, as well as international and regional human rights treaties. "These rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so…” Use language that may have more sway with independent voters.
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Above all else, don’t allow restrictions on funding to give her a pass on the issue. Funding reproductive health is critical. This is not just hypothetical — cases challenging the Trump administration’s rollback of the birth control benefit are pending in courts across the country and new ones are being filed against the recent Trump administration rules that allow any employer with religious or moral objections to refuse to provide birth control coverage.
Hopefully, the question of replacing Justice Ginsburg will not be faced until after the presidential election. But that is not an excuse to get complacent on the issues that Amy Coney Barrett brings to the table.
Tara D. Sonenshine, a former US undersecretary of state for public diplomacy and public affairs, is a fellow in public diplomacy at the George Washington University School of Media and Public Affairs.
