Democrats try to pin Barrett down on Roe v. Wade and abortion rights

Judge Amy Coney Barrett has more of a track record detailing her views on abortion and Roe v. Wade than recent nominees.

Still, after two days of hearings — while Democrats have laid out their case and repeatedly highlighted the fact that Barrett, if confirmed, could be a critical vote to allow more abortion restrictions, and teased out her views on whether the landmark 1973 decision qualifies as “super precedent” protected from being overturned — Barrett has avoided breaking much new ground.

The debate over the future of abortion is where it was before the hearings began: Barrett as a law professor working at a Catholic university made clear that she was opposed to abortion and as a judge voted twice to revisit her colleagues’ opinions that struck down abortion restrictions. In addition, she had to supplement her record when CNN reported upon undisclosed talks she gave as a law professor to student groups that oppose abortion.. After hours of testimony, however, Barrett never strayed from her mantra: As a judge she would follow the law and leave her personal opinions aside.

“My policy views, my moral convictions, my religious beliefs do not bear on how I decide cases nor should they, it would be in conflict with my judicial oath,” she said.

That didn’t stop Democrats from trying.

Sen. Dianne Feinstein, the top Democrat on the Judiciary Committee, asked her whether she agreed with her mentor, Justice Antonin Scalia, that Roe was wrongly decided.

“I can’t pre-commit or say, ‘yes, I’m going in with some agenda’ because I’m not,” Barrett said. “I have an agenda to stick to the rule of law and decide cases as they come.”

Sen. Richard Blumenthal, a Connecticut Democrat, also asked her about a 1992 decision, Planned Parenthood v. Casey, that upheld the core finding of Roe.

“Roe v. Wade clearly held that the Constitution protected a woman’s right to terminate a pregnancy,” Barrett said. “Casey upheld that central holding–and spelled out in greater detail the test that the court uses to consider the legality of abortion regulations,” she said, again refusing to say whether the decisions were correctly decided.

Minnesota Democratic Sen. Amy Klobuchar brought up the notion of “super precedent” — whether a case is so settled that no political actor would seriously push for it being overturned.

Barrett noted the fact that throughout the day she had been asked about the future of Roe. “I think that indicates that Roe doesn’t fall in that category,” she said. “Scholars across the spectrum say that doesn’t mean that Roe should be overruled, but descriptively it does mean that it’s not a case that everyone has accepted.”

For one Democratic aide the exchange was illuminating. “Under her reasoning, Roe v. Wade could be upheld a dozen more times, but would still not be considered super precedent,” the aide said. “That’s because, according to her rationale, as long as right-wing groups continue to challenge Roe v. Wade in court, it’s vulnerable to being overturned.” The aide pointed out that others have testified that Roe did qualify as super precedent.

But what Barrett said, is similar to what she wrote in 2013 as a law professor. “If anything, the public response to controversial cases like Roe reflects public rejection of the proposition that (precedent) can declare a permanent victor in a divisive constitutional struggle rather than desire that precedent remain forever unchanging. Court watchers embrace the possibility of overruling, even if they may want it to be the exception rather than the rule.”

Alexis McGill Johnson, president of the Planned Parenthood Action Fund, was critical of Barrett.

“By saying that a 47-year-old decision is not ‘well settled’ law, simply because there have been calls for it to be overruled by a dogged and vocal minority, Amy Coney Barrett makes it perfectly clear that her addition to the Supreme Court would put the right to access safe, legal abortion, at risk,” she said.

And when Barrett was asked about votes she had taken on the 7th US Circuit Court of Appeals when she voted to rehear cases after her colleagues struck down restrictions. She said that just because she wanted the court to rehear the case doesn’t mean she thought the decisions were wrong. She stressed she had not taken a view on the merits of the case.

It’s been nearly 50 years since Roe was decided, and once again it’s at the center of a confirmation hearing.

It comes as supporters of abortion rights are watching more than 15 cases percolating in the lower courts that will likely arrive at the Supreme Court in the coming terms. And earlier this week the Supreme Court declined to reinstate restrictions for the time being on patients seeking to obtain a drug used for abortions early in pregnancy. Instead, the justices said the case should continue in the lower courts before making its way back to the Supreme Court. By then, Barrett may be on the court.