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How Supreme Court Justice Amy Coney Barrett could impact abortion rights

MARY LOUISE KELLY, HOST:

This is the week the Supreme Court hears a case that could effectively overturn Roe v. Wade, the case that nearly 50 years ago declared a nationwide right to abortion. The case that will be heard this week is Dobbs v. Jackson Women's Health Organization.

ARI SHAPIRO, HOST:

That's Jackson as in Jackson, Miss. The justices are being asked to consider a challenge to Mississippi's ban on most abortions after 15 weeks. It's the second time this year the justices will hear a case challenging abortion rights. Earlier this fall, the court heard arguments challenging a Texas law known as SB8. It effectively bans all abortions after about six weeks, well before most women know they're pregnant.

KELLY: Well, as the arguments play out tomorrow, many eyes will focus on Amy Coney Barrett, one of three justices nominated by former President Trump that gave the court a 6-3 conservative supermajority. Barrett has repeatedly criticized Roe v. Wade. So how might this week unfold, and how might Justice Barrett ultimately rule? Well, to talk about that, we are joined by Emily Bazelon, staff writer for The New York Times Magazine and a lecturer at Yale Law School.

Welcome.

EMILY BAZELON: Thanks so much for having me.

KELLY: To the role that Amy Coney Barrett could play, she's been on the court a little over a year now. Overall, what kind of justice has she been?

BAZELON: I think we see a deeply conservative justice and also one who is a tactician and a strategist. So what we've seen with Justice Barrett is that she has been most willing to move the law to the right when she can do so quietly, in part by not writing very many opinions. She wrote eight opinions last term, which was the fewest of any of the justices.

And also, she has been willing to use the court's emergency docket, sometimes called the shadow docket, to take significant steps in a conservative direction. With the shadow docket, the court doesn't have full briefing and argument. It has written very short opinions. There's just less opportunity for scrutiny. And also, the court isn't required to explain itself in the same way. And so that's a way in which Justice Barrett has cast votes that move the court to the right but in a way that's relatively under the radar.

KELLY: When you say you see a tactician, a strategist at work, a strategy in the service of what? I mean, explain that.

BAZELON: Well, the best example of this was a case last term called Fulton v. City of Philadelphia, and this was a case that, in short, pitted LGBTQ rights against a Catholic social service agency's claim of religious freedom. It was about foster care parents and whether the city of Philadelphia had to continue a contract with this Catholic social services agency even though it was not accepting LGBT parents as foster care applicants.

Justice Alito, a very conservative justice, wrote a long, sweeping opinion that would have really changed the law in a way that would have made it much easier for plaintiffs like the social services agency to win. And Justice Barrett was not willing to sign on to Justice Alito's opinion. She said, wait a second. Maybe in the future, that will make sense. But we don't have to make a huge change to rule in favor of the religious plaintiff here. And I want to see what kind of arguments come down the pike, what kind of legal standard we should impose for the future. And she talked about lower court judges and how, when the court makes a big change that upends the status quo but doesn't give clear guidance about what standard to apply instead, that kind of leaves lower court judges holding the bag.

KELLY: So you're describing Justice Barrett as proceeding in a very careful, very judicious way in this high-profile religious freedom case. Is there anything that prompts you to think that she might move more aggressively, much more aggressively in these abortion cases?

BAZELON: Well, I think if there's an issue that would tempt Justice Barrett to move aggressively, it's abortion. You know, she would say that her views as a justice are separate from her personal views. But in 2006, she signed a letter that was part of a local newspaper ad that called for an end to the barbaric legacy of Roe v. Wade. And she...

KELLY: Barbaric - this was her word.

BAZELON: That was the words of the letter she signed.

KELLY: OK.

BAZELON: Yes. And she's also decried Roe on one of its anniversaries. And she has said that she shares the late Justice Scalia's approach to being a judge. Well, we know that Scalia thought Roe v. Wade was wrongly decided and really this kind of stain on constitutional interpretation. And so there is a path forward for overturning Roe outright or really gutting it.

KELLY: I'm thinking of the symbolism of Justice Barrett, a woman, if she were to join a majority in striking a final blow against Roe v. Wade. How important would that be?

BAZELON: You know, in all likelihood, all the other votes for striking down or dealing a blow to Roe will come from men. And so to have Justice Barrett present in that majority as a woman is significant. It makes it seem that there is a kind of consensus view across gender among conservatives, at least, that abortion rights need to be limited or severely curtailed in the United States.

KELLY: That it's not just men telling a woman what to do with her body.

BAZELON: Yes - that it's women also or at least one woman saying this is good for women.

KELLY: I'm thinking about the image of the court, which is obviously something that matters to all of the justices, given that they are devoting their careers to serving this institution. Justice Barrett has talked about caring about the image of the court, that we not, as Americans, see it as a partisan institution. How does that come into play here, if at all, as these arguments in both these abortion rights cases, Texas and Mississippi, play out?

BAZELON: Yeah, it's such an interesting question. In the last year, public approval of the court has dipped significantly. They're at the lowest approval rating they've been since Gallup started tracking. They're at 40%. They were at 58% a year ago. The justices are clearly aware of this. And you're right. Justice Barrett gave a speech in which she said, you know, the court is not a bunch of partisan hacks.

She got some flack for giving that speech at a center at the University of Louisville that was named for Senate Minority Leader Mitch McConnell, especially because he introduced her at that event. But from her point of view, this seems to be weighing on her. If the court radically diminishes the constitutional protection for abortion rights, it will be because Justice Barrett replaced Ruth Bader Ginsburg and because Justice Kavanaugh replaced Anthony Kennedy, who was more of a centrist on abortion.

KELLY: Emily Bazelon. Her recent piece for the New York Times magazine was headlined "It's Amy Coney Barrett's Supreme Court Now."

Emily Bazelon, thank you.

BAZELON: Thanks so much.

(SOUNDBITE OF ALBERT HAMMOND JR.'S "SPOOKY COUCH") Transcript provided by NPR, Copyright NPR.

Mary Louise Kelly is a co-host of All Things Considered, NPR's award-winning afternoon newsmagazine.
Alejandra Marquez Janse
Courtney Dorning has been a Senior Editor for NPR's All Things Considered since November 2018. In that role, she's the lead editor for the daily show. Dorning is responsible for newsmaker interviews, lead news segments and the small, quirky features that are a hallmark of the network's flagship afternoon magazine program.
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