Even before President Trump officially named Amy Coney Barrett as his nominee to the Supreme Court, the left began assailing the Seventh Circuit Court of Appeals judge and Notre Dame Law School professor. The vilest attacks involved the mother-of-seven’s two adopted children.
Those attempting to scuttle Barrett’s confirmation by questioning the circumstances of those adoptions will soon be silenced, however, by more savvy leftists who recognize the risk of backlash is too great. Instead, the more mainstream Democrats will present their objections to Barrett’s appointment as tethered to her judicial rulings, especially in the area of abortion.
Here, the left also just can’t seem to stick to the facts: Rather than level with Americans that they fear the conservative Barrett will vote to overturn Roe v. Wade and thereby return abortion policy to the states, opponents of the Seventh Circuit judge are lying about her judicial record.
Twitter pundits and personalities began peddling these falsehoods on Friday, claiming Barrett “has ruled twice in favor of upholding restrictions to abortion access.”
Within minutes of President Donald Trump’s Rose Garden introduction of Barrett on Saturday, an email blitz from the National Abortion Federation, the self-anointed “professional association of abortion providers,” proclaimed Barret a threat to “our basic rights and freedoms, including abortion access.”
The press release by the association’s president and CEO, “The Very Reverend Katherine Ragsdale,” then pushed hard on this theme, claiming Barrett has “vot[ed] twice in her three short years as a federal appellate judge, in favor of abortion restrictions, both times in dissent.” This claim is blatantly false.
Coney Barrett has never voted “in favor of abortion restrictions.” As we shall soon see, had Barrett voted to uphold the abortion restrictions at issue, there would be strong public support for the decisions. Even the phraseology is wrong: A judge doesn’t vote “in favor of abortion restriction.” State and federal legislators do. What a judge does (or should do) is assess the constitutionality of the statute.
Even then, Barrett has never sat on a case challenging the constitutionality of an abortion restriction. Rather, what she has done is vote for “en banc” review of two panel decisions rendered by other judges on the Seventh Circuit.
What Were the Cases?
In one case, Box v. Planned Parenthood of Indiana and Kentucky, a three-judge panel of the Seventh Circuit declared two provisions of the Indiana code regulating abortions unconstitutional and then upheld a lower court’s injunction barring enforcement of the provisions. One provision at issue in the case banned abortions procured solely on the basis of the unborn baby’s sex, race, ethnicity, or disabilities, while the other portion of the challenged law required aborted remains to be disposed of by burial or cremation.
While Barrett dissented from the denial of rehearing en banc, voting for the full court to rehear a case is not a vote on the underlying merits. As for her vote being in the “dissent,” that merely meant a majority of the judges decided not to rehear the case.
Given that the Supreme Court later reversed the Seventh Circuit’s panel decision and upheld the fetal disposal portion of the law, however, Barrett’s view that the full court should reconsider the issue seems solid. (The Supreme Court declined to review the merits of Indiana’s ban on sex, race, ethnicity, or disability-based abortions, as no other court of appeals had yet to address that question, and the high court typically waits for a split in the circuits to consider a question.)
The second case, also captioned Planned Parenthood of Indiana and Kentucky v. Box, (Box being Kristina Box, the commissioner of the Indiana State Department of Health), likewise involved a challenge to an Indiana law regulating abortions. The law at issue in this second case required parental notification of a minor’s intent to undergo an abortion, absent a judicial decision that it was in the child’s “best interest” for her parents not to be notified.
Again, a panel of the Seventh Circuit declared the law unconstitutional and entered an injunction barring its enforcement. Judge Michael Kanne dissented from the panel decision, and a vote to go en banc was called but failed, leaving the panel decision intact.
Kanne dissented from the denial to rehear the case en banc, and Barrett, along with three other colleagues, joined that dissent. The dissent, however, addressed solely the decision to rehear the case and not the merits of the abortion legislation. In fact, the dissent made clear the issue of concern was not the abortion regulation, but procedure and federalism.
“This case implicates an important and recurring issue of federalism,” Kanne wrote. “Under what circumstances, and with what evidence, may a state be prevented from enforcing its laws before it goes into effect? … Given the existing unsettled status of pre-enforcement challenges in the abortion context,” the longtime federal judge wrote, “I believe this issue should be decided by our full court. Preventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure.”
While the full Seventh Circuit did not rehear the case, the Supreme Court later vacated the panel decision, sending it back for the judges to decide the issue anew following the high court’s guidance in June Medical Services, LLC v. Russo concerning the undue burden analysis.
Amy Coney Barrett Is No Extremist
Not only is the abortion lobby’s claim that Barrett voted to strike down abortion restrictions in two cases false, but the Supreme Court’s subsequent rulings also vindicate her view that the issues warranted further consideration by the full court.
Another equally important pushback is needed: The attacks on Barrett fail to identify the “abortion restrictions” at issue and purposely so, to create the impression she is an extremist. Laws requiring parental notification and banning sex-based abortions receive widespread support, however. Mandating the cremation or burial of fetal remains does not strike moderate Americans as unreasonable, especially after the discovery of thousands of aborted fetal remains hoarded by the now-deceased abortionist George Klopfer.
Of course, the bottom line for abortion apologists is that there should be no restrictions on abortion — even those supported by a majority of Americans. Given that reality, stay tuned for the next false charge likely in the pipeline: that with Barrett on the Supreme Court, Roe v. Wade will be reversed and abortion will be illegal.
Unfortunately, no matter how many times that canard is challenged, the message just doesn’t seem to get through: Overturning Roe v. Wade will not make abortion illegal. Maybe, what we need is a new messenger — say, a law professor.