Barrett says she doesn’t classify Roe v. Wade as superprecedent

Supreme Court nominee Amy Coney Barrett said Tuesday that she did not consider Roe v. Wade, the landmark ruling establishing a woman’s right to an abortion, as a superprecedent, meaning a decision so widely accepted that it is invulnerable to serious legal challenges that could see it overturned. 

Barrett said during the second day of her Supreme Court confirmation hearing that she defined superprecedent as cases that are “so well settled that no political actors” or other people are “seriously pushing for its overruling.” 

“I’m answering a lot of questions about Roe, which I think indicates Roe doesn’t fall into that category,” Barrett said in response to a question from Sen. Amy Klobuchar (D-Minn.) 

“Scholars across the spectrum say that doesn’t mean Roe should be overruled, but descriptively it means it’s not a case everyone has accepted,” Barrett said.

Barrett has repeatedly declined to offer her opinion on various court rulings, including Roe v. Wade, arguing it would be a violation of judicial conduct.

“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 litigants I might tilt one way or another in a pending case,” she said earlier in the hearing.

Still, some scholars say Roe v. Wade is not a superprecedent because of the lack of consensus as to the soundness of the decision. Among its critics are some Republicans on the Senate Judiciary Committee, who believe the case was wrongly decided by the Supreme Court.

Democrats have argued that Barrett’s confirmation to the court would endanger Roe v. Wade given President Trump’s vow to nominate justices who are “pro-life.” 

Barrett signed an open letter in 2006 in opposition to  “abortion on demand,” but she has repeatedly stated her personal opinions have no effect on her rulings as a judge.  

Barrett, a member of the 7th Circuit Court of Appeals, has issued few rulings on abortion.

In 2018, she disagreed the court’s decision not to rehear a decision striking down an Indiana law that would have restricted abortion based on a fetus’s disability or sex.