On October 26, the U.S. Senate confirmed Judge Amy Coney Barrett as the newest member of the Supreme Court after a 52-48 vote. Feminist icon Ruth Bader Ginsburg’s death on September 18 left an opening for President Donald Trump to nominate a new Supreme Court justice, his third since taking office less than four years ago. He nominated Coney Barrett eight days after Ginsburg’s death, just weeks before the 2020 presidential election, despite the fact that Republicans blocked former president Barack Obama’s 2016 court nominee for a full 11 months for being too close to an election.
Judge Barrett is a former Notre Dame professor, one-time clerk to staunchly conservative Supreme Court Justice Antonin Scalia, current federal appellate court judge, and conservative devout Catholic. She has made controversial legal opinions and comments on numerous issues, from abortion to gay marriage. Her confirmation will give conservatives six of the nine seats on the Supreme Court. Since Barrett is 48 years old and appointed for life, her confirmation will impact the Court’s decisions for decades to come.
Because the Constitution leaves it to Congress to decide the number of seats on the Supreme Court, and the number of justices has varied in the past, some Democrats suggest they might “pack” the court with new nominees if they gain control of the Senate and White House following the election. That outcome is far from certain. Democratic nominee Joe Biden has said he’s “not a fan” of the idea, since Republicans could retaliate if they later regain control of Congress. However, on October 22, Democratic Senate Minority Leader Chuck Schumer maintained that “everything’s on the table” if Democrats become in control of the Senate.
For now, one thing seems certain: Barrett is officially the newest Supreme Court justice. Here’s how Barrett’s joining the Supreme Court could affect our health on a number of important issues, from abortion, contraception, and health care access to LGBTQ and disability rights.
Barrett has justified overturning Roe v. Wade because of a supposed “rejection” of the ruling by the American people. Polls have consistently found that a majority (around 60%) of Americans say they want to keep the 1973 Supreme Court decision, which legalized abortion in the United States. Many likely remember the time before Roe when illegal abortions accounted for about 17% of all reported pregnancy- and childbirth-related deaths (and probably a lot more than that, in reality). Based on previous public statements and rulings, Judge Barrett will likely vote to at least restrict abortions, if not outright overturn Roe, as a Supreme Court justice.
Speculation on how Barrett might rule on abortion is based on how she views stare decisis, or the Court’s respect for precedent (a ruling that’s the “authority” for deciding other cases). If Barrett doesn’t view Roe as a binding precedent, she could vote to overturn it in a future Supreme Court case. In a 2013 law review article on stare decisis, Barrett wrote that it’s “more legitimate for [a Supreme Court justice] to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.” She added that rejecting precedent is even more applicable when a case is unpopular. “The public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor,” she wrote, adding that “the public controversy about Roe has never abated.” During her Supreme Court confirmation hearings, she was evasive about Roe, responding that she couldn’t “pre-commit” by expressing her views on cases.
Even if Roe isn’t overturned, Barrett could rule to increase abortion restrictions, as she did as a federal appeals court judge. In 2019, she joined a dissenting opinion when her court overturned a law requiring minors to notify their parents they were seeking an abortion. In 2018, Barrett voted to uphold two laws overturned by a lower court that required fetal remains to be cremated and banned abortions based solely on the sex, race, or disability of the fetus. In 2016, Barrett suggested that a future Supreme Court could allow states to pass more abortion restrictions.
In her personal life, Barrett signed an anti-abortion newspaper advertisement that called to reverse the “barbaric legacy” of Roe v. Wade and defended the “right to life from fertilization to natural death,” according to the Chicago Tribune. As a law professor at Notre Dame Law School, Barrett signed a paid ad in 2013 that condemned Roe v. Wade and promised to “renew our call for the unborn to be protected in law.” She also says her personal views won’t influence her professional judgment. In a 1998 Notre Dame Law School article where Barrett said abortion was “always immoral,” she concluded that judges should keep their decisions separate from their beliefs. During the 2017 Senate confirmation hearings for her appointment to the federal appeals court, she repeatedly said a judge shouldn’t impose their personal opinions on their rulings, “whether they derive from faith or anywhere else on the law.”
Now, with Barrett confirmed to the Supreme Court, odds are high that she’ll soon see a case challenging abortion. According to Planned Parenthood, 17 abortion cases are one step from the Supreme Court. Two major abortion cases will be in front of the Court in its upcoming term: Dobbs v. Jackson, a Mississippi law that directly challenges Roe and would ban abortion at 15 weeks, and Women’s Health Organization and FDA v. ACOG, which seeks to remove restrictions on abortion medication. If the Court accepts these cases and rules to overturn Roe in its decisions, 16 states would ban abortion and many others would apply new restrictions, according to the Kaiser Family Foundation.
On health care access
A CNN poll of 1,205 people this October found that 61% of Americans don’t want the Supreme Court to overturn Obamacare, also known as the Affordable Care Act or ACA. Given how many people have benefited from the law, that’s not entirely surprising. Following the passage of the ACA, more than 20 million Americans gained health coverage, dropping uninsured rates by a third or more among people of all incomes, according to the Center on Budget Policies and Priorities. The ACA also bans insurers from denying coverage to people with preexisting health conditions (previously a common practice), and it bars them from charging women more than men (insurers routinely charged women 50 percent or more for monthly premiums than men before the ACA, according to the National Women’s Law Center (NWLC)). The ACA further prohibits insurers from setting lifetime and annual limits on how much care you can receive. And it guarantees coverage for birth control, prescription drugs, prenatal care, and breastfeeding assistance, as well as mental health and substance abuse services.
The Trump Administration repealed the ACA’s unpopular individual mandate in 2017 and tried to further gradually dismantle the law since then. The Administration’s latest challenge: Asking the Supreme Court to overturn the ACA this June. The Supreme Court is set to hear this case, California v. Texas, this November 10—a week after election day and roughly two weeks after Barrett’s confirmation by the Senate. Republican lawmakers who filed the case claim that the elimination of the individual mandate in 2017 doomed the ACA; Judge Barrett’s views on those arguments are unknown, according to The New York Times. Barrett’s vote could be the final blow to the law.
Chief Justice John Roberts famously sided with the Court’s liberal wing to uphold the ACA in two previous cases: NFIB v. Sebelius, in 2012, and King v. Burwell, in 2015. In a 2017 law review article, Barrett criticized Roberts’s opinion in NFIB, writing that he “pushed the Affordable Care Act beyond its plausible meaning to save the statute.” In a 2015 NPR interview, Barrett said the dissenting justices in both cases had the “better of the legal argument.” She justified her statement during her Supreme Court confirmation hearing, saying that “a professor professes and can opine. But it’s very different than the judicial decision-making process.” During that same testimony, she further noted that the specific legal issues in Texas are distinct from those in NFIB and King, and that she has “no hostility to the ACA [and]…will faithfully apply the law.” Legal experts say it’s uncertain how Barrett would rule in this or future challenges to the ACA, but her views are aligned with the conservative legal movement and she’d likely vote with Justices Brett Kavanaugh and Neil Gorsuch. Barrett’s mentor, the late Justice Antonin Scalia, dissented in both NFIB and King. “His judicial philosophy is mine too,” Barrett said of Scalia at her September 2020 Supreme Court nomination Rose Garden Ceremony. “A judge must apply the law as written. Judges are not policy makers and must be resolute in setting aside any policy views they might hold.”
Overturning the ACA could have profound impacts on our nation’s health. A June 2020 analysis by the Robert Wood Johnson Foundation found that the number of uninsured people would increase by roughly 20 million. People with the lowest incomes would be especially hard-hit without the Medicaid expansion adopted by 34 states. Eliminating the ACA would also remove the law’s protections for the estimated one in two (or 129 million) Americans with preexisting conditions, according to the Centers for Medicare & Medicaid Services. Democrats argue that insurers could even deem COVID-19 a “pre-existing condition,” which could eliminate insurance for the more than 8 million Americans diagnosed with the condition to-date.
On LGBTQ+ rights
“I have no agenda, and I do want to be clear that I have never discriminated on the basis of sexual preference,” Barrett said while discussing LGBTQ+ rights during her Senate confirmation hearing. Barrett was swiftly criticized for using the term “sexual preference,” which many Americans say is “offensive” and “outdated”. The correct term is “sexual orientation”, according to GLAAD, since “preference” wrongly suggests that being LGBTQ+ “is voluntary and therefore ‘curable.’”
In her personal life, critics point out that Barrett has effectively discriminated against LGBTQ+ people. An Associated Press investigation revealed that Barrett served on the board of trustees of Trinity Schools Inc. from 2015 to 2017, which began barring kids with unmarried parents from its schools in 2014. Former school staff say the policy was meant to exclude kids of same-sex couples, since marriage was illegal for same-sex couples in Indiana at the time. Barrett and her husband are also members of People of Praise; interviews of more than two dozen people concluded that these communities consistently hold that being a gay or lesbian person is an “abomination against God,” that marriage should only be between a man and a woman, and that sex should only occur in a marriage. In 2015, Barrett signed a letter to Catholic bishops stating that marriage and family should be “founded on the indissoluble commitment of a man and a woman.”
In her professional career, Barrett says she holds the same judicial philosophy as Scalia, who dissented in Obergefell v. Hodges, the Supreme Court ruling that ruled same-sex marriage is guaranteed by the Constitution. In a lecture she gave as a Notre Dame law professor in 2016, Barrett defended the Obergefell dissenters. She said that Title IX protections for transgender Americans were a “strain on the text” and suggested that laws on marriage equality should be left to state legislatures, not the courts. The case’s plaintiff and defendant, Jim Obergefell, called Barrett’s confirmation a “human rights emergency” in an October opinion piece in The Washington Post. During her Senate Supreme Court nomination hearings, Barrett declined to say whether she agreed with the Obergefell decision. “I don’t think that anybody should assume that just because Justice Scalia decided a decision a certain way that I would too,” she said.
Several important LGBTQ+ cases will soon come before the Court, including Fulton v. City of Philadelphia. The case, which is scheduled to be heard on November 4, seeks to allow private agencies that receive taxpayer funds to provide services, such as foster care providers and homeless shelters, to deny services to LGBTQ+ people based on religious objections. A number of other cases are winding their way through the courts that could put LGBTQ+ rights at risk, including nondiscrimination laws protecting transgender students and health care protections for transgender patients. There is some hope for the LGBTQ+ community, however, as both Justice Neil Gorsuch and Chief Justice Roberts joined Ginsburg this past June in 6-to-3 rulings for Bostock v. Clayton County, Ga., Altitude Express Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, which applied the Civil Rights Act of 1964 to discrimination based on sexual orientation and gender identity.
In a letter to Senate leaders this October, dozens of disability advocacy groups objected to Barrett’s nomination to the Supreme Court. The groups noted that Barrett seems primed to overturn Obamacare, which could be disastrous for the 28.9 percent of families who have at least one disabled family member, according to census data. The ACA has supported people with disabilities through its protections for preexisting conditions, Medicaid expansion, coverage of mental health services, habilitation services for people with intellectual and developmental disabilities, and protections against disability discrimination, the letter notes.
Earlier this year in a ruling as a circuit judge, Barrett dissented against the decision in Wolf v. Cook County, which banned a recent Homeland Security rule that made it more difficult for immigrants with disabilities to come to the U.S. or become permanent residents by considering them a “public charge.” The majority opinion said that the rule violated the Rehabilitation Act of 1973, which makes it illegal for federally-funded programs to discriminate based on disabilities, concluding that it “penalizes…[and] disproportionately burdens disabled people.” Barrett also joined a 2019 decision, P.F. v. Taylor, which ruled that the state of Wisconsin didn’t discriminate when it said that kids with learning disabilities who applied to transfer to a school district outside of their residential area could be denied a transfer application if the school lacked the “services necessary to meet those special needs.”
During her Senate Supreme Court nomination hearing, Barrett said she doesn’t think that the 1965 Supreme Court ruling in Griswold v. Connecticut—which legalized contraception in the U.S. and paved the way for Roe v. Wade—is “in danger of going anywhere.” However, as with other Court rulings, Barrett refused to say whether she believed the Court reached the right conclusion. Her personal views on the topic have raised concerns: In 2006, Barrett signed an advertisement created by the anti-choice organization St. Joseph County Right to Life (an organization that also wants to criminalize the discarding of unused embryos from the in-vitro fertilization process) stating that “life begins at fertilization”. This stance views some forms of contraception, including intrauterine (IUD) devices, as unacceptable.
Barrett’s main potential influence on contraception access surrounds the ACA. If the court votes to dismantle the ACA, fewer people may be able to access affordable contraception, particularly IUDs. Under the ACA, health insurers must provide free birth control, including hormonal birth control pills and IUDs, to all women. According to an analysis by the NWLC, the ACA guaranteed birth control to over 55 million women without out-of-pocket costs. That saved Americans $1.4 billion on birth control pills alone in 2013, with data suggesting a 5% uptick in filled birth control prescriptions that year. It also made IUD devices, which can cost up to $1,000 out-of-pocket (more than a month’s salary on minimum wage), more attainable. According to the Kaiser Family Foundation, IUD use increased from 6 percent of all women on contraception in 2006-2011 to 14 percent in 2015-2017, suggesting the IUD’s price may have been a barrier to people without insurance coverage.
Even if the ACA stays intact, Barrett may rule that companies don’t have to offer their employees contraceptive coverage. As a law professor at Notre Dame, Barrett signed a 2012 public statement by the Becket Fund that opposed the ACA’s contraceptive coverage mandate, claiming the Obama administration’s accommodation for some religious institutions “changes nothing of moral substance and fails to [remove] the assault on religious liberty.” Although the Supreme Court recently upheld the ACA’s birth control mandate by a wide margin in its 7-2 ruling, the Court could certainly see more cases in the future where companies refuse to cover contraception in their insurance plans for religious reasons.