WASHINGTON (CBS) —
Four years ago on the campaign trail, then-candidate Donald Trump pledged that if he were elected, only “pro-life” justices would get his nomination for a seat on the Supreme Court. As president, it’s a promise he’s delivered on twice already, and in the coming weeks, potentially once more.
Mr. Trump’s frontrunner, Amy Coney Barrett, meets the president’s unprecedented anti-abortion rights litmus test. The federal judge has referred to abortion as “always immoral” and offers something another top candidate, Barbara Lagoa, doesn’t: A clear anti-abortion rights judicial record. During her three years on the 7th Circuit Court of Appeals, she has already ruled on two abortion-related cases, both times favoring restrictions on access to abortion.
Many believe that overturning Roe v. Wade — the landmark 1973 Supreme Court decision that legalized abortion nationwide — is no longer a hypothetical. The vacancy on the court follows the death of Justice Ruth Bader Ginsburg, who was not only liberal but an unequivocal supporter of abortion rights. Though Mr. Trump’s two Supreme Court nominations — Justices Neil Gorsuch and Brett Kavanaugh — have been against abortion rights, both replaced conservative justices, effectively leaving the balance of the court nearly untouched.
Earlier this summer, the Supreme Court narrowly struck down an abortion restriction from Louisiana that could have left the state without any abortion providers and leaving 15 more states with abortion access “profoundly” impacted.
Though Chief Justice Roberts joined the liberal bloc in that decision, his separate opinion has been used by federal appeals courts reason to uphold other abortion restrictions. Today, 17 cases related to abortion are one step away from the Supreme Court and three, including a 15-week abortion ban from Mississippi, could be taken up as early as its next session. Dozens more, including the handful of last year’s six-week abortion bans, are making their way through the judicial system.
As anticipation mounts ahead of Mr. Trump’s Supreme Court nomination announcement on Saturday, Barrett has emerged as one of the top prospects, meeting with the president twice this week at the White House.
Unlike other frontrunners, Barrett offers a judicial record of being against abortion access. Since her appointment to the 7th Circuit Court of Appeals in 2017, Barrett has reviewed two abortion cases, each dealing with restrictions on the procedure.
In Box v. Planned Parenthood of Indiana and Kentucky Inc., Barrett joined dissenters arguing in favor of an Indiana law that would have required doctors to notify the parents of a minor seeking an abortion. Unlike parental notification laws in other states, Indiana’s didn’t include a judicial bypass provision, an exception to the law for minors able to prove to a judge they have the maturity to make the decision of their own and that notifying their parents would not be in their best interest.
Barrett also joined dissenters in another abortion case from Indiana, Commissioner of the Indiana State Department of Health v. Planned Parenthood of Indiana and Kentucky Inc. Barrett favored a rehearing of two state laws: one that regulated the fetal remains from abortion procedures and another that would have banned abortions for reasons related to sex, race or disability, including life-threatening conditions.
The majority, which struck down the so-called “reason ban,” found that the restriction limited a patient’s ability to receive an abortion prior to fetal viability, and thus was in violation of Roe v. Wade.
Restricting legal abortion is contrary to public opinion, according to polling from the Pew Research Center. As of 2019, more than two-thirds of Americans believe abortion should be legal in all or most cases, the highest support in more than 20 years, per Pew. A little more than 10% believed the procedure should be illegal in all cases.
A clear judicial record on abortion rights sets Barrett apart from fellow frontrunner Barbara Lagoa, a federal judge on the 11th U.S. Circuit Court of Appeals. It also could make Barrett a more favorable pick among conservatives: Less than 24 hours after Justice Ginsburg’s death, Missouri Senator Josh Hawley tweeted he’d only “vote only for #SCOTUS nominees who understand and acknowledge that Roe was wrongly decided” and called on his fellow Republican lawmakers to do the same.
Despite a 14-year career as a state and federal judge, Lagoa doesn’t appear to have faced any abortion cases. In written responses to questions from the Senate Judiciary Committee last year, Lagoa called Roe “settled law” and “binding precedent of the Supreme Court, and I would faithfully follow it as I would follow all precedent of the Supreme Court.”
Before her appointment to the federal appeals court, Barrett was a law professor at Notre Dame, where she was a member of Faculty for Life, a group that describes itself as “committed to the legal and societal recognition of the value of all human life.”
Barrett, a devout Catholic, received scrutiny for the role her faith might play in her judicial decisions during her 2017 confirmation hearing before the Senate Judiciary Committee, and in one notable exchange, Senator Dianne Feinstein of California, the committee’s top Democrat, told Barrett “the dogma lives loudly within you, and that’s of concern.”
During those hearings, Barrett told the committee that if she were confirmed her “views on this or any other question will have no bearing on the discharge of my duties as a judge.”