Amy Coney Barrett, the ACA, Abortion, and the Future of the Supreme Court

Two big issues that the opposition to Amy Coney Barrett's confirmation as an Associate Justice of the U.S. Supreme Court have focused on are abortion and the Affordable Care Act. With respect to the ACA, Barrett seems open to a severability argument. As I understand it (I have not researched this in depth), in the current case before the Supreme Court, those, including the Trump Administration, who want the Supreme Court to decide that the ACA is unconstitutional are arguing that the mandate to have health insurance is no longer a tax since Congress lowered the penalty to zero and hence is unconstitutional. This, they argue, means that the ACA in its entirety is unconstitutional. The doctrine of severability implies that the Court could decide that the mandate is unconstitutional but not strike down the rest of the ACA. (The Congress next year could change the law so that there is a penalty, perhaps small, which would seem to moot the case.) In the future, others could bring different cases to attack the ACA, and it is possible with Barrett on the Court that it could reverse its recent precedent on this. Of course, while I think this is not that likely, it is also possible that Barrett and four other Justices decide for some reason that severability does not apply in the current case before the Court.

Abortion has been a hot-button issue for a long time. As way of background, before Roe v. Wade, there was the 1965 case, Griswold v. Connecticut. Contraception was illegal in Connecticut, and in this case, the Supreme Court decided that married couples had a right of privacy under the Constitution and could, therefore, not be denied the use of contraceptives. (A 1972 case, Eisenstadt v. Baird, extended the right to use contraception to unmarried couples. This struck down a Massachusetts law based on the Equal Protection Clause of the 14th Amendment.) The Roe v. Wade opinion used the right of privacy argument stemming from the Griswold case to hold that laws prohibiting abortion were unconstitutional.

It is, therefore, instructive that, when asked at her confirmation hearing whether she agrees with the Court's Griswold opinion, Barrett refused to answer. She did say that it was unlikely that Griswold would be struck down, since, for that to happen, a state would have to enact a law prohibiting contraception and the challenge to that law would go to the Supreme Court. She viewed this as unlikely. (While it is unlikely that a state legislature would pass a law prohibiting all contraception, it is possible that a state could enact a law prohibiting certain types of contraception, especially those viewed by some as “abortifacients.” That would likely reach the Supreme Court.)

In contrast to Barrett, when John Roberts was asked about the Griswold case at his confirmation hearing to be Chief Justice, he answered that “there is a right to privacy protected as part of the liberty guarantee in the Due Process Clause.” He further said: "I agree with the Griswold Court’s conclusion that marital privacy extends to contraception and the availability of that."

Clarence Thomas at his confirmation hearing to be an Associate Justice also said he agreed with the Griswold decision, saying “my bottom line was that I felt that there was a right to privacy in the Constitution, and that the marital right to privacy, of course, is at the core of that.”

Samuel Alito at his confirmation hearing also affirmed that there was a right of privacy under the Constitution. He was a bit more ambiguous about Griswold: “I agree that Griswold is now, I think, understood by the Supreme Court as based on the liberty clauses of the due process clause of the Fifth Amendment and the 14th Amendment.” 

The two newest Justices would not say whether they agreed with Griswold. When asked at his confirmation hearing about Griswold, all Justice Neil Gorsuch would say is that it was long-established precedent. He would not answer whether he agreed with the decision.  Justice Brett Kavanaugh also refused to say whether he agreed with the reasoning of the Griswold decision in his confirmation hearing.

Given that Roe v. Wade relies on Griswold and that there seems to be some Justices who do not believe that the Constitution grants a right of privacy, it is not that hard to see it being reversed at some point in the future.

However, sometimes lost in the discussion of Roe v. Wade is a discussion of the Planned Parenthood v. Casey decision (1992), which modified Roe v. Wade by applying on state restrictions on abortion "an undue burden" test. In subsequent decisions, the Supreme Court has found that many state laws applicable to abortion clinics do not pose an "undue burden" on women who want to have an abortion. As a result, many women of limited means find it nearly impossible to obtain an abortion in some states. (Other states, such as Virginia, have relaxed in recent years the laws applicable to abortion.) In other words, while the Court has claimed that the central holding of Roe v. Wade has been affirmed, how much access there is to abortion as a practical matter remains to a great degree up to state governments.

As a self-defined “originalist,” Barrett most likely disagrees with the right of privacy justification in Griswold for striking down the contraception law in Connecticut. Moreover, one can say with a great deal of certainty that she believes that Roe v. Wade was wrongly decided. The real question is what she thinks of the Casey decision, which relies heavily on the doctrine of stare decisis to uphold a woman’s right to terminate a pregnancy prior to the point of viability. Casey, though, does jettison the trimester approach in Roe and explicitly allows for state rules governing abortion unless they impose an “undue burden” on a woman’s right to obtain an abortion.

The authors of the governing decision in Casey – Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter  – spend quite a few words worrying about the Court’s perceived legitimacy if it did not adhere to stare decisis with respect to Roe. They do say that there are times when a decision is so egregious that it must be overturned. They mention specifically Lochner v. New York and Plessy v. Ferguson. Lochner struck down a New York State law limiting bakers to work at most 60 hours a week and Plessy v. Ferguson decided that racial segregation laws were constitutional for facilities that were “separate but equal.” With respect to Roe, the Justices writing the controlling opinion in Casey wrote: “In contrast, because neither the factual underpinnings of Roe’s central holding nor this Court’s understanding of it has changed (and because no other indication of weakened precedent has been shown), the Court could not pretend to be reexamining Roe with any justification beyond a present doctrinal disposition to come out differently from the Roe Court. That is an inadequate basis for overruling a prior case.”

It is not clear what Barrett thinks of this argument, and, if she disagrees, how far she is willing to go in limiting the legal right of women to terminate pregnancies. It is also not clear how far four other Justices are willing to go, now that the “conservatives” (assuming Barrett is confirmed) will have a clear majority and their decisions will have real-word effects. At a minimum, it is likely that Roe will continue to be whittled down by burdens that the Court decides are not “undue.” Whether they go further than that is uncertain. They know that public sentiment is not on their side.

Making abortion illegal would not eliminate it. There will always be women who will seek abortions, no matter how easily available various types of contraception are. If it is illegal, there will be illegal and, in many cases, unsafe abortions. That is not an optimum policy result.

While the most likely result is a patchwork of different laws among the states concerning abortion, according to Laurence Tribe, Congress could make it illegal everywhere if Roe were overturned. I doubt that would happen, given public opinion on the subject, but it is worth keeping in mind. Also, Tribe points out in a 2018 tweet, that Roe “is a 2-sided coin. It protects a woman’s liberty to choose *whether or not* to bear a child. Relegating that choice to the state isn’t a PRO-LIFE move but an ANTI-LIBERTY move. If a state can say ‘stay pregnant!’ it can also say ‘abort!’” Again, that is unlikely but possible.

The concentration on the ACA and abortion partially eclipses other matters that come before the Court. With Barrett on the Court, one can easily see the dismantling of many regulations that business interests view as "undue burdens," such as those protecting the environment and worker safety. Also, there could well be decisions allowing more voter suppression than is currently the case.

Barrett argues that the originalist approach to the Constitution is one of judicial modesty. She says that the elected branches should make policy, not unelected Justices. However, if the Supreme Court interprets the Constitution as limiting severely what legislation is permissible, the Court will be in the policymaking business, as it was when it was striking down New Deal legislation, leading President Franklin Roosevelt to propose a complicated court-packing scheme. While that proposal was and is viewed by most unfavorably, there is an argument that it worked, since two Justices subsequently started voting with the liberals then on the Court. “A switch in time saved nine.”