Questions about faith and abortion featured prominently during the second day of U.S. Senate hearings for Seventh Circuit Court of Appeals Judge Amy Coney Barrett’s confirmation to the Supreme Court. 

Famously, Sen. Dianne Feinstein, D-Calif., said in Judge Barrett’s 2017 judicial confirmation hearing, “when you read your speeches, the conclusion one draws is that the dogma lives loudly within you and that’s of concern.” Barrett, a devout Catholic and mother of seven children, once again faced scrutiny over Christian beliefs on abortion and traditional marriage Tuesday.  

Sen. Feinstein began Tuesday morning by asking about the 1973 Roe v. Wade decision legalizing abortion, and if Barrett agreed with the late Justice Antonin Scalia that Roe was “wrongly decided.” Judge Barrett replied by quoting Justice Elena Kagan that “she was not going to grade precedent or give it a thumbs up or a thumbs down.” After Feinstein called it “distressing” that Barrett would not answer the question, Barrett said “I completely understand why you are asking the question, but again I can’t pre-commit, or say yes, I’m going in with some agenda, because I’m not. I don’t have any agenda.” 

Judge Barrett continued to field questions about abortion as Sen. Amy Klobuchar, D-Minn., asked if she regarded Roe v. Wade as “super-precedent.” Barrett replied that super-precedents are “cases that are so well settled that no political actors and no people seriously push for their overruling. And I’m answering a lot of questions about Roe which I think indicates that Roe doesn’t fall in that category.” She added that “doesn’t mean that Roe should be overruled, but descriptively it does mean that it’s not a case that everyone has accepted.”

Judge Barrett said she considered as “super-precedents” the 1954 Brown v. Board of Education, which outlawed racial segregation in public schools, and the 1803 Marbury v. Madison decision, which gave courts the authority to strike down laws as unconstitutional.

 

Questioning about Pro-Life Statements

While some Democratic senators argued that they were not advocating “religious tests” for judges, time was spent questioning Barrett’s views on abortion that had come out in the context of her time as a professor at a Catholic university, and signing a statement on abortion while exiting Mass one Sunday. Barrett signed a statement at her church on January 2006 that was sponsored by a group called St. Joseph County Right to Life, which read, “We the following citizens of Michiana oppose abortion on demand and support the right to life from fertilization to a natural death.” 

The Guardian recently interviewed Jackie Appleman, the executive director of St. Joseph County Right to Life, who told them that “We support the criminalization of the doctors who perform abortions. At this point we are not supportive of criminalizing the women. We would be supportive of criminalizing the discarding of frozen embryos or selective reduction through the IVF process.”

 The Catechism of the Catholic Church teaches that in IVF “the act which brings the child into existence is no longer an act by which two persons give themselves to one another, but one that ‘entrusts the life and identity of the embryo into the power of doctors and biologists and establishes the domination of technology over the origin and destiny of the human person. Such a relationship of domination is in itself contrary to the dignity and equality that must be common to parents and children.’”

In regard to her support for the statement on life, Barrett was asked by Sen. Patrick Leahy, D-Vt., about whether she believed IVF should be criminalized. Barrett emphasized that the statement “simply said we support the right to life from conception to natural death,” adding that “it took no position on IVF.”

When Sen. Blumenthal pressed her on the issue, Barrett said that “the statement that I signed affirmed the belief of my church with respect to matters of life” and emphasized that she was “not responsible” for statements that the St. Joseph County Right to Life group made as she is not a member. As for criminalizing IVF, she reiterated that she could not “answer questions in the abstract” as any such case would have to be decided in the judicial process. 

Blumenthal also brought up a 2013 statement Barrett signed during her time as a law professor at the University of Notre Dame as a member of the Notre Dame Faculty for Life, which said “we faculty and staff at the University of Notre Dame reaffirm our full support for our university’s commitment to the right to life, we renew our call for the unborn to be protected in law and welcomed in life, and we voice our love and support for the mothers that bear them.”

Barrett noted that “Notre Dame is a Catholic university and embraces the teachings of the Church on abortion and so as a faculty member and member of the university faculty for life, I signed that statement.”

 

Record on Abortion

In addition to these statements regarding her personal beliefs on abortion, Barrett was questioned on her record on the Seventh Circuit Court of Appeals on the issue. Sen. Leahy asked about Barrett joining a dissent against overturning two Indiana laws, one that banned abortions sought solely due to the baby’s sex or a disability diagnosis and another which required abortion providers to bury or cremate fetal remains. 

Leahy noted that the dissent she joined called the provision against abortions based on disability or sex a “eugenics statute,” and asked why she didn’t limit herself to dissenting on the fetal remains provision. Barrett replied that “on the eugenics portion of the bill it is true that the state of Indiana did not seek … rehearing on that but we had many other states enter the case as amici urging us to take that claim up.”

Despite Barrett repeatedly telling Democratic senators that she could not answer questions about whether or not she believed Roe v. Wade to be wrongly decided, many of them, including Democratic presidential nominee Joe Biden’s running mate, Sen. Kamala Harris, concluded nevertheless that Barrett’s confirmation would be dangerous to Roe v. Wade.

“As the Senate considers filling the seat of Justice Ruth Bader Ginsburg,” Harris said at the conclusion of her questioning, “I would suggest that we not pretend that we don’t know how this nominee views a women’s right to choose to make her own healthcare decisions.”

 

Questioning on Marriage

Barrett was also asked by Sen. Cory Booker, D-N.J., about whether she would respond to a question about “whether a florist can refuse to serve a same sex couple?” She replied that it sounded like “Masterpiece Cakeshop and some of the cases that are very hotly contested” and she didn’t want to be in a “position where I am eliciting any views that would bear on litigation that’s very active.” 

Booker and Sen. Mazie Hirono, D-Hawaii, both focused on Barrett’s use of the term “sexual preference” earlier in the hearing. Sen. Hirono said that “‘sexual preference’ is an offensive and outdated term. It is used by the anti-LGBTQ activists to suggest that sexual orientation is a choice. It is not. Sexual orientation is a key part of a person’s identity... So if it is your view that sexual orientation is merely a ‘preference,’ as you noted, then the LGBTQ community should be rightly concerned whether you will uphold their constitutional right to marry.”

“I certainly didn’t mean and would never mean to use a term that would cause any offense in the LGBTQ community,” Barrett said in reply to the criticism. “If I did, I greatly apologize for that. I simply meant to be referring to Obergefell’s holding with regard to same-sex marriage.” Some pointed out following the exchange that Joe Biden had himself recently used the term“sexual preference” during a campaign event in May.