With Barrett on Supreme Court, what’s the future of Roe v. Wade and abortion?

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President Trump stands with newly sworn in U.S. Supreme Court Associate Justice Amy Coney Barrett during a ceremonial swearing-in event on the South Lawn of the White House October 26, 2020 in Washington, DC. The Senate confirmed Barrett’s nomination to the Supreme Court today by a vote of 52-48. (Photo by Tasos Katopodis/Getty Images)

WASHINGTON, D.C. — With Amy Coney Barrett joining the U.S. Supreme Court, many are wondering what that might mean for the future of abortion rights, specifically Roe v. Wade.

President Donald Trump, who has now appointed three justices during his first term in office, vowed to nominate justices who would overturn Roe. And with a 6-3 conservative majority, the door has opened on that possibility.

However, experts say it wouldn’t be a quick or simple process.

To overturn Roe, the high court would need to hear an abortion case. In doing so, they could make the case about the landmark ruling.

Many experts point to a case brought by Whole Woman’s Health challenging a ban on the dilation and evacuation method of abortion. The case is awaiting a decision after being heard in the 5th Circuit. Whole Woman’s Health was the plaintiff in a 2016 abortion case that resulted in a 5-3 decision that ruled Texas couldn’t place restrictions on abortion services that create an “undue burden” for women seeking the services.

There’s also another case from Ohio that challenges a ban on abortions based on a diagnosis of Down syndrome.

Roe v. Wade is a 1973 case in which the Supreme Court ruled the Constitution of the United States protects a pregnant woman’s ability to have an abortion without excessive restrictions from the government.

Overturning or greatly weakening Roe would send the legality of abortions back to the states.

According to an analysis from the New York Times, abortion access would be unchanged in more than half of states but would decline in large regions of the country. Most affected would be the South and Midwest.

“A post-Roe United States isn’t one in which abortion isn’t legal at all,” Caitlin Knowles Myers, an economist at Middlebury College who gathered the research for the Times, said. “It’s one in which there’s tremendous inequality in abortion access.”

Myers noted access would likely be limited to some of America’s poorest citizens. Without Roe, abortion would likely become illegal in some 22 states, according to her analysis. She says about 40% of women could see their nearest abortion clinic close.

Other experts say it’s more likely abortion rights would be weakened versus Roe being entirely reversed.

“I think what’s more likely to happen, rather than have a full-on immediate reversal of Roe, is they take on some of these new regulations and see how much they can achieve without having that out-and-out reversal,” Gillian Metzger, a professor of constitutional law at Columbia, told the Times.

“If the question is will we see reductions in access, yes, I think we will,” she said.

During the confirmation process, Barrett declined to weigh in on whether the landmark Roe v. Wade ruling is a “super precedent” of the court. That move leaves many wondering where she stands on the issue.

A review of Barrett’s writings and speeches as a Notre Dame law professor for the 15 years before she became a federal appeals court judge in 2017 reveal a nuanced thinker cautious about stating her personal views. She has never said publicly she would overturn Roe or other precedents expanding abortion rights.

But she has clearly left the door open to that possibility.

“Our legal culture does not, and never has, treated the reversal of precedent as out-of-bounds,” she said in a 2013 Texas Law Review article. She also describes the high-court tradition of heeding previous rulings, or precedent, as a “soft rule” and not “an inexorable command.”

Barrett, 48, has styled herself as the heir to Scalia, noting she abides by Scalia’s judicial philosophy.

At the center of that shared philosophy is a strict form of constitutional interpretation called originalism, which Scalia championed. In deciding if a current law is unconstitutional, originalists put the focus on the original meanings of words in the Constitution.

Scalia criticized more liberal justices for creating new rights, such as abortion, that he said the framers of the Constitution couldn’t have foreseen. He argued, as Barrett and other originalists have, that new rights should be extended by constitutional amendments, not by courts.

Scalia said in a 2012 CNN interview that the high court’s finding in Roe v. Wade that the Constitution includes a right to privacy, and thereby protects a woman’s choice to have an abortion, “does not make any sense.” Neither, he said, do arguments by anti-abortion groups that abortion deprives fetuses due process rights.

“My view is regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad … the Constitution does not say anything about it,” Scalia said.

Scalia, a Catholic like Barrett, said the Constitution leaves the question up to the states.

“What Roe v. Wade said was that no state can prohibit it,” he said. “That is simply not in the Constitution.”

But Scalia often struck a pragmatic chord, warning that reversing some precedents could shatter trust in the Supreme Court. Barrett highlighted his caution about casting established precedent aside in a 2017 Notre Dame Law Review article. She quoted Scalia as saying: “I am an originalist. I am not a nut.”

“His commitment to originalism,” Barrett wrote in the same piece, “did not put him at continual risk of upending settled law. If reversal (of precedent) would cause harm, a Justice would be foolhardy to go looking for trouble. Scalia did not.”

But might she?

Barrett did agree with Scalia in her 2013 Texas Law Review article that legal chaos could ensue if justices overturn precedents on which courts, lawyers and the public at large have for so long relied.

“People,” she wrote, “must be able to order their affairs, and they cannot do so if a Supreme Court case is a ‘restricted railroad ticket, good for this day and train only.’”

But she has also suggested that Roe v. Wade and later rulings on abortion may not be in the category of precedents that are untouchable.

Controversy around cases like Roe pointed to the public’s rejection of the idea of “a permanent victor in a divisive constitutional struggle,” she wrote in the Texas Law Review article.

“Court watchers,” she added, “embrace the possibility of overruling, even if they may want it to be the exception rather than the rule.”

The staying power of precedents, she went on, is not necessarily in their support by courts but in the broad, popular acceptance of them.

Among several cases she described in the 2013 article as clearly immune from bids to overturn them was Brown v. Board of Education, which found racial segregation in schools was unconstitutional.

“Scholars,” she said, “do not put Roe on the superprecedent list (the list of untouchable precedents) because the public controversy about Roe has never abated.”

Her critics say such arguments put Barrett outside the mainstream of legal scholarship.

“Barrett takes the extreme view, unsupported by virtually anyone in the legal community, that a judge does not have to adhere to precedent if she believes a case was wrongly decided,” the Alliance for Justice has said, saying it shows she is open to the possibility of reversing Roe v. Wade.

Jamal Greene, a professor at New York’s Columbia Law School, said Barrett could stop short of shooting down Roe v. Wade and other abortion-rights precedents and still end up gutting them.

“There is room for someone like her who takes Scalia’s position to not vote to overturn precedent — but to never see any abortion restriction that she sees as unconstitutional,” he said.

While Barrett has suggested she is nearly perfectly aligned with Scalia, Greene said she may be farther to Scalia’s right and nearer to current conservative Clarence Thomas.

“Thomas’ position is that if a precedent was wrongly decided, then you vote to overturn it,” Greene said. “Justice Scalia distanced himself from that. … It sounds like Barrett is trying to associate herself with a position just short of Thomas’ position.”

The Associated Press contributed to this report.

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