President Donald Trump’s nomination of Amy Coney Barrett to fill the Supreme Court’s current vacancy is fantastic for many reasons. On the pro-life front, not only is Barrett is a strong candidate, but she has a leg up on any other potential nominee in that she’s studied the next battle in abortion litigation.
With Barrett, the fight over whether the Constitution and case law allow eugenic abortions is all but over.
During her time on the Seventh Circuit Court of Appeals, Judge Amy Coney Barrett heard and studied a lawsuit over an Indiana abortion law that, in part, made it “illegal to perform an abortion for the purpose of choosing the sex, race, or (dis)abilities of a child.”
In effect, the Indiana law made it illegal for anyone to get an abortion for eugenic reasons; you couldn’t say, “I don’t want this sex or this race or this ‘genetic defect’ in my future child.”
The Seventh Circuit ended up striking down the law, with Barrett joining a dissent on that case. Indiana appealed to the Supreme Court, where the justices declined to rule on the case’s eugenic sections because the issue was too new. Standard practice for the Supreme Court is to let other circuit courts to rule on a novel argument before ruling on it at a high level.
The Supreme Court said at the time that their opinion “expresses no view on the merits of the second question presented, i.e., whether Indiana may prohibit the knowing provision of sex-, race-, and disability-selective abortions by abortion providers. Only the Seventh Circuit has thus far addressed this kind of law. We follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.”
Justice Clarence Thomas wrote a blistering concurrence in that case, which he ended by observing, “Although the Court declines to wade into these issues today, we cannot avoid them forever. Having created the constitutional right to an abortion, this Court is dutybound to address its scope.”
Since that decision came down in May of 2019, other states have joined Indiana in creating their own laws banning eugenic abortions. It’s a novel area of law because it’s unclear whether any past Supreme Court precedent truly applies to these kinds of cases — which is why only Justices Sonia Sotomayor and Ruth Bader Ginsburg were ready to strike the law down without another thought. They didn’t want the court to explore the topic.
That brings us back to the opinion Judge Barrett joined on the Seventh Circuit addressing the issue. The dissent was authored by the renowned Judge Frank Easterbrook, a Reagan appointee, and the man that Antonin Scalia told journalists should be the one to replace him in 2012.
Judge Easterbrook analogizes the Indiana law to old employment laws.
“Judges often said that employers could fire workers for any or no reason. That’s the doctrine of employment at will. But by the late twentieth century courts regularly created exceptions when the discharge was based on race, sex, or disability,” he wrote. “Casey does not tell us whether a parallel ‘except’ clause is permissible for abortions.”
Right now, people claim that abortion law permits anyone to get an abortion for any reason at all. That’s similar to old rules in labor law, which allowed employers to fire anyone for any reason at all.
But if we don’t allow people to fire people based on race, sex, or other reasons, why do we allow the same in the context of abortion? Easterbrook continues:
[T]here 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.
This argument may seem like splitting hairs, but it’s a significant difference. If these kinds of restrictions can be put into place, the pro-life movement would have the first serious foothold in decades in putting restrictions on abortion.
Many legal commentators fear that the liberal bloc of the Supreme Court was well on its way to making abortion a super-precedent, untouchable by any person or state. Whether or not abortion will become a super-precedent is questionable now. And the looming confirmation of Judge Barrett to the court provides another vote of a legal mind willing to question the abortion case law framework.
Judge Barrett is one of the only judges in America to read and debate the topic, placing her in an excellent position to lead similar debates at the Supreme Court.