Judge Amy Coney Barrett on Tuesday morning refused to say how she viewed two landmark cases establishing a woman’s right to an abortion, setting up a major battle on the issue ahead of her Supreme Court confirmation vote and the Nov. 3 election.
Democrats say Barrett is a threat to overturn the landmark abortion rights case Roe v. Wade, pointing to her legal writings, in which she cited Planned Parenthood v. Casey, which affirmed Roe v. Wade, as an example of an “erroneous decision.”
Barrett, a member of the 7th Circuit Court of Appeals, in 2018 also disagreed with a decision not to review her circuit court’s decision striking down an Indiana law that would have restricted abortion based on a fetus’s disability or sex.
Asked by Sen. Dianne Feinstein (D-Calif.) on Tuesday if she agreed with the late Justice Antonin Scalia’s dissent in Planned Parenthood v. Casey or his view that Roe v. Wade was wrongly decided and should be overruled, Barrett declined to answer.
“I do want to be forthright and answer every question so far as I can. I think on that question I’m going to invoke Justice Kagan’s, which I think is perfectly put. When she was in her confirmation hearing, she was not going to grade precedent, or give it a thumbs up or a thumbs down,” Barrett said, referring to Justice Elena Kagan, who was appointed to the Supreme Court by former President Obama in 2010.
“I think in an area where precedent continues to be pressed and litigated, as is true of Casey, it would actually be wrong and a violation of the canons for me to do that as a sitting judge,” she added. “If I express a view on a precedent one way or another, whether I say I love it or I hate it, it signals to litigant I might tilt one way or another in a pending case.”
Feinstein, the ranking Democrat on the Judiciary Committee, was not happy with the reply.
“It’s distressing not to get a straight answer,” she said, citing the potential impact on millions of women of curtailing Roe v. Wade or Planned Parenthood v. Casey.
Democratic suspicions over how Barrett might rule in abortion cases is heightened by the fact that conservatives, notably Sen. Josh Hawley (R-Mo.), demanded that President Trump nominate a judge with a public record of skepticism toward Roe v. Wade.
Barrett, however, insisted on Tuesday that she would not come to the Supreme Court with any “agenda.”
“I can’t pre-commit or say, ‘Yes, I’m going in with some agenda,’ because I’m not. I don’t have any agenda. I have no agenda to try and overrule Casey. I have an agenda to stick to the rule of law and decide cases as they come,” she said.
Asked once again by Feinstein whether she agreed with Scalia’s view that Roe v. Wade should be overturned, Barrett declined to answer, asserting it could come before her on the court.
“My answer is the same because that’s a case that’s litigated. Its contours could come up again, in fact, do come up. They came up last term before the court,” she said, describing abortion rights as a “contentious issue.”
Feinstein said “that makes it difficult for me” because “this is a very important case.”
“You could be a very important vote,” she added.
Supporters say there are 17 abortion-related cases that are “just one step away” from the Supreme Court and that two recent cases on restrictions were decided by just one vote while Justice Ruth Bader Ginsburg was still on the court.