Reviews | Amy Coney Barrett and the question of abortion
With the fate of Roe v. Wade in play during Wednesday’s oral argument in Dobbs v. Jackson Women’s Health Organization, all ears were on new Supreme Court Justice Amy Coney Barrett.
People on both sides of the abortion debate wanted to get a feel for how the only woman in the Conservative bloc would intervene in one of the thorniest issues facing the court – and American women. Whether fairly or not, Judge Barrett’s gender has always featured prominently in speculation about its impact on the Court’s abortion case law. When former President Donald Trump chose Brett Kavanaugh to replace Judge Anthony Kennedy, he would have assured confidants that he held then-Judge Barrett in reserve in case he was able to appoint the successor to Judge Ruth Bader Ginsburg, then the most ardent defender of abortion rights.
While Tories generally denounce identity politics, many nonetheless viewed Judge Barrett’s gender as an asset as the court gradually crept to the right – and into a showdown with Roe. For example, in a Editorial 2018 for BloombergConservative expert Ramesh Ponnuru called for Judge Barrett’s appointment largely because if a more conservative Supreme Court overturned Roe v. Wade, “It would be better if it wasn’t done just by male judges, with every female justice dissenting.”
But if the Conservatives saw Justice Barrett’s gender as political cover for their decades-long plan to dismantle reproductive rights, the courts itself presented a more complicated picture on Wednesday. While she didn’t explicitly invoke her identity as a woman, she appeared to lean into her identity as a foster mother – and indeed, the only mother on the pitch – to question Roe’s foundations.
When the court reaffirmed Roe in Planned Parenthood v. Casey in 1992, judges tied the right to choose to the recognition that “Motherhood has a huge impact on a woman’s educational prospects, employment opportunities and self-determination. In a symposium with Julie Rikelman, who argued for the Mississippi abortion clinic in Wednesday’s arguments, Judge Barrett suggested that the advent of shelter laws, which allow parents to forego new -born for adoption by leaving them in hospitals or police stations, relieved women of the burdens of “forced motherhood” which hamper their professional and educational ambitions. It was a surprising exchange, which suggested that anti-abortion laws raise few constitutional issues in a world where adoption is available to those who wish to avoid parenthood.
Judge Barrett, more than any other member of the tribunal, is in an optimal position to assess the burdens of motherhood and their impact on career ambitions. After all, she is a mother of seven and has managed to combine work and family – a point senators on both sides of the aisle reiterated in her confirmation of charges hearings. In a ceremony at the Rose Garden for then-Judge Barrett, President Trump introduced his candidate as “a deeply devoted mother” who would be the first mother of school-aged children to sit in court.
Judge Barrett’s performance in oral argument on Wednesday underscored how her identity as a mother could inform her case law. In the event that Roe survives this clash with the court, there are plenty of other cases that will allow the court to reconsider this beleaguered precedent. Lower federal courts are challenging so-called grounds bans that prohibit abortion if performed for the purpose of sex or race selection, or because of detection or diagnosis of a fetal abnormality .
If Judge Barrett is willing to vote that dismantles Roe – the decision that is credited with expanding education and employment opportunities for women – a ban-of-reason challenge would allow him to do so on terms that match to her identity: a mother who raised seven children while simultaneously reaching the pinnacle of the legal profession.
Judges, as we know, are not isolated from identity politics. Judge Thurgood Marshall, the first African American to sit on the court, regularly surfaced issues of race that his white colleagues may have overlooked. Despite their ideological differences, Justice Marshall’s successor, Justice Clarence Thomas, did the same. In a 2003 case that considered the constitutionality of a law that prohibited burning a cross in public with the intent to intimidate others, Judge Thomas issued a separate opinion documenting blacks’ experience with the Ku Klux Klan . More recently, in a gun rights challenge, Justice Thomas cited the death of Emmett Till and other historic episodes of racial violence as evidence of the need for stronger Second Amendment rights.
If the court were challenged on the grounds of prohibition, the example of Judge Thomas in these earlier cases could provide a model for Judge Barrett to explicitly invoke his own experiences – and his identity – to weigh in on the thorniest issue of our time. era. Her symbolic authority as a mother of two black children and a child with Down’s syndrome could transform a decision quashing Roe from an expression of crude partisanship into a more publicly acceptable meditation on the broader questions of motherhood, personality, and birth. the dignity that the anti-choice movement has insisted on for years.