President Trump nominated 7th Circuit Court of Appeals Judge Amy Coney Barrett to the United States Supreme Court on September 26, 2020. Judge Barrett’s youngest son happens to have Down syndrome. She has also spoken and written about her Catholic faith. These and other factors have many wondering what the future holds for Roe v. Wade.
At the nominating ceremony, President Trump mentioned at the start of his remarks Judge Barrett’s family. Judge Barrett is married to a fellow attorney and the two have seven children. The Barretts adopted two of their children from Haiti. Also noted, at the time of her Judiciary Committee hearing for her nomination to the 7th Circuit, her youngest son was described as having “special needs,” and with this nomination, the reporting has specified that he has Down syndrome.
In a widely read and cited profile of Judge Barrett by the New York Times, it initially reported that she received a prenatal test result showing her son would have Down syndrome. Since its initial publication, the Times has issued a correction, noting that the Barretts did not have prenatal testing.
Regardless, for many, that she has a child with Down syndrome is seen as a physical manifestation of their expectation that Judge Barrett is pro-life. The implicit reasoning being that were she pro-choice, she would not have chosen to have a child with Down syndrome. The faultiness of that logic speaks for itself, since pro-choice should suggest respecting any reproductive choice.
But, I expect, as is often the case in public arguments over abortion, “Down syndrome” is a stand-in for the controversial subject. This is because there remains a high termination rate associated with a prenatal test result for Down syndrome. While studies of the termination rate are few and far between, even the most current one I found reports a termination rate of around 66%.
Put another way, for every three pregnancies that receive a prenatal test result for Down syndrome, two of them end in abortion. As a result, in the public mind, “Down syndrome” and “abortion” get meshed together.
Critics of Judge Barrett and advocates for abortion rights have and will cite to her continuing a pregnancy conceived after she was forty and giving birth to a child with Down syndrome as yet further evidence that if confirmed, Justice Barrett would rule to overturn Roe v. Wade. And, certainly, pro-life advocates hope that to be the case.
But, does her record support such an expectation?
Before joining the 7th Circuit, Judge Barrett clerked for Justice Antonin Scalia and then became a faculty member of her alma mater, the Notre Dame Law School. Were Judge Barrett as zealous a pro-lifer as some portray her, it would be expected there would be multiple law journal articles and public remarks by her calling for the overturning of Roe.
The reporting about Judge Barrett’s views on abortion, however, reveal a thin paper trail.
During her confirmation hearings for her current position, Judge Barrett was asked about a 1998 Notre Dame Law Journal article in which she and a co-author wrote about Catholic teachings and the law. I graduated law school in 1998, a year after Judge Barrett graduated at the top of her class. In the article, she and her co-author wrote that the Catholic teaching is that abortion is “always immoral.” However, they concluded their article by noting:
Judges cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge.
The only other reported remarks in the public record were from two addresses. The first from 2013 at a lecture at Notre Dame Law School on the 40th anniversary of Roe:
I think it is very unlikely at this point that the court is going to overturn (Roe v. Wade). … The fundamental element, that the woman has a right to choose abortion, will probably stand.
The second was from an address at Jacksonville University from 2016:
I don’t think abortion or the right to abortion would change. I think some of the restrictions would change … The question is how much freedom the court is willing to let states have in regulating abortion.
Judge Barrett has been on the 7th Circuit since 2017. In the less than three years, two cases came before the appellate court concerning abortion. Both were requests to be reheard. Both times Judge Barrett voted with the (losing) side to rehear the cases. In neither did Judge Barrett author an opinion stating her views.
One of the two cases concerned parental notification for a minor seeking an abortion. The other concerned the Indiana law prohibiting abortions on the basis of race, sex, or disability AKA the “Down syndrome abortion ban” law, that I have written about multiple times.
In the dissenting opinion Judge Barrett joined, Judge Easterbrook referred to the law as the “eugenic statute” and argued:
The panel held the eugenics statute unconstitutional because the lead opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 879 (1992) (O’Connor, Kennedy & Souter, JJ.), says that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”
* * *
Casey and other decisions hold that, until a fetus is viable, a woman is entitled to decide whether to bear a child. But there is a difference between “I don’t want a child” and “I want a child, but only a male” or “I want only children whose genes predict success in life.” Using abortion to promote eugenic goals is morally and prudentially debatable on grounds different from those that underlay the statutes Casey considered.
None of the Court’s abortion decisions holds that states are powerless to prevent abortions designed to choose the sex, race, and other attributes of children.
But, here’s the annoying, legal loophole-y aspect of this dissenting opinion: it was not limited to Indiana’s “eugenic statute” and the State of Indiana had not asked the 7th Circuit to rehear its appeal on the “eugenic statute”, being satisfied to take the contrary ruling directly up to the Supreme Court (which I wrote about here).
I say “annoying” because Judge Barrett could have joined the dissenting opinion because she agreed that the other statute (which dealt with the disposal of aborted fetal remains) should have been reheard. So, Judge Easterbrook’s opinion of Casey and the eugenic statute may not have been shared by Judge Barrett.
The point being that for as much as will be predicted and argued during Judge Barrett’s confirmation hearing of whether she is pro-life and would overturn Roe, the record of her remarks directly on Roe is relatively scant for someone who is characterized as being a pro-life advocate.
And, her having a son with Down syndrome should not be seen as further evidence of how she will approach whether the Roe was correctly decided or whether it should be overturned.
Hmmm. -Ms
Why did the White House photo ops exclude her son with Down Syndrome? Why is she ashamed of him?
I watched the ceremony live as it happened. Video of when the family approached the stage for the photo at the end showed her husband cajoling her son with Down syndrome to join them, but her son returned to the babysitter who had accompanied the family. I was in a similar public ceremony when our governor signed our Down Syndrome Information Act. He invited my daughter to join him at the desk for the signing, but the moment was just a little too overwhelming for her and she retreated as well, which is what I expect happened with her son. Just as I am not ashamed of my daughter for not being front-and-center at a bill signing, I expect neither is Judge Barrett of her son preferring to be off-stage with their babysitter.
She signed an àd that called Roe V Wade “barbaric,” and another that said life begins at conception. You can say many things, but she has made her position clear.
Judge Barrett was asked about these matters during her confirmation hearing and explained they were consistent with her personal views, but similar to the distinction made in the post where she does not apply her religious beliefs in her role as a judge, similarly these personal views would not affect her analysis of what the law required. Or, at least, that was her testimony.
Maybe he was having a bad day? Seriously? The woman goes through with the pregnancy adopts 2 other children. I think we can hardly be critical of her. She has a high regard for her religion and her faith in God.
I fail to see how a person with strong religious views can say they will have zero impact on their decisions.
Feel free to review her 100 decisions as a circuit court judge to see if her religious views had an impact. Considering she went through two days of questioning with Senators seeking to identify areas of concern from her writings, I would have expected an example of any religious bias in her decisions would have been brought up.
I find it strange that a 42 year old pregnant woman neglected to have prenatal testing to determine the health of the fetus. I assume she was well aware of the dangers. What I find strange is that Amy Coney Barrett did not seek the medical tests available that would provide her and her husband all the medical tests information about their unborn child. The more information the better is critical for any mother ( and father ) to be prepared. Special needs infants/toddlers/ children need a lot of extra( and expensive ) care.
This is a wealthy couple. So their wealth allows them to “take it” as it comes. However ,I find the behaviors of Amy Coney Barrett to be “reckless” and maybe ” naive “.
I do not think Amy Coney Barrett has the qualities necessary to serve on the Supreme Court.
Whether to have prenatal genetic testing is a choice for each expectant mother. Prenatal genetic testing, itself, only identifies the chromosomal make-up of the child, it does not reveal the physiological health of the fetus. To obtain a diagnosis involves risking the health of the fetus, due to the associated chance of miscarriage. Studies have found prenatal genetic testing information described as “toxic knowledge” for some expectant mothers. The most current research finds the healthcare costs to be relatively small (less than $3 a day). If your assessment of Judge Barrett’s fitness as a Supreme Court justice is based on your assertions regarding prenatal testing, then your conclusion is based on incorrect information.
A woman of faith accepts whatever God has bestowed upon her. Many don’t realize it’s by faith and her works that is why she made the decision that she has made. I’m sure her son has taught her more lessons in life then she could teach him. Funny how that works with a special needs child.