Where Amy Coney Barrett Stands on Gun Rights and Abortion

September 26, 2020 Updated: September 27, 2020

Amy Coney Barrett, who currently serves as a federal judge for the Chicago-based 7th Circuit Court of Appeals, has been nominated by President Donald Trump to fill the vacancy on the Supreme Court bench. Her record as a judge and legal scholar is being intensely scrutinized as predictions are made about what the bench will look like if Barrett replaces the late Justice Ruth Bader Ginsburg.

As an appellate court judge, Barrett has weighed in on a number of hot-button issues since taking the bench in the 7th Circuit in 2017, such as abortion and gun rights. She is also a professor at Notre Dame Law School, where she taught in the areas of constitutional law, the federal courts, and statutory interpretation.

Barrett has already earned the backing of many conservative activists for her originalist approach to the law and her perceived hostility to Roe v. Wade, the 1973 Supreme Court ruling that legalized abortion in 50 states.

Meanwhile, abortion rights, civil rights, and other progressive groups have expressed concerns over Barrett’s record.

The judge previously drew intense scrutiny for reviving a lawsuit from a male Purdue University student who had been found responsible for sexual assault by what critics described as the campus’s “kangaroo court.”

Some are also worried that Barrett’s religious views would guide her in her legal analysis such as in abortion-related cases, as seen in 2017 when Sen. Dianne Feinstein (D-Calif.) tensely questioned the judge about her religious background. Barrett replied that judges shouldn’t “follow their personal convictions in the decision of a case, rather than what the law requires.”

The judge has also indicated that she is supportive of expansive gun rights in a dissent she authored in 2019.

Here are some of her notable legal opinions on these issues.

Gun Rights

Barrett indicated her support for gun rights in her dissent in Kanter v. Barr, a 2019 case that challenged a federal law that took gun rights away from nonviolent felons. A businessman who had pleaded guilty to mail fraud argued that the law violated his Second Amendment right to bear arms.

The 2–1 majority, both appointed by Republican President Ronald Reagan, said the federal law and a similar Wisconsin one were constitutional.

In her dissent, Barrett said that since the country’s founding, legislatures have taken gun rights away from people who were considered dangerous.

“History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns,” she wrote. “But that power extends only to people who are dangerous.”

She added that while the federal and state governments have a strong interest in protecting the public from gun violence, they had failed to show that the business owner owning a gun would pose a risk.

“The Second Amendment confers an individual right, intimately connected with the natural right of self-defense, and not limited to civic participation,” she said.

Abortion

Barrett has grappled with some abortion-related cases while on the 7th Circuit bench and cast votes that signaled opposition to rulings that struck down abortion-related restrictions.

In 2018, Barrett voted to rehear a case en banc—to have the three-judge panel decision reviewed by the full court—involving an Indiana law that required fetal remains to be buried or cremated after an abortion. The trial and appeals court judges found that the law violated the Constitution. Ultimately, Barrett was outnumbered and the 7th Circuit ruled to deny the rehearing and reinstated an original opinion that blocked the law from being enforced.

At the time, she joined in a dissenting opinion authored by Judge Frank Easterbrook. The dissent addressed another portion of the law that had been struck down but was not at issue in the rehearing proceedings, which Easterbrook described as the “the eugenics statute.” That portion of the law bans abortions for sex, race, and disability reasons.

Easterbrook argued that the Supreme Court had never ruled on such a law and would be the only authority to rule on the issue.

“Using abortion to promote eugenic goals is morally and prudentially debatable on grounds different from those that underlay the statutes [Planned Parenthood v.] Casey considered,” the dissent reads (pdf). “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.”

The Supreme Court later reinstated the Indiana law on the disposal of fetal remains.

In 2019, Barrett voted to rehear a ruling by a three-judge 7th Circuit panel that upheld a challenge to another Indiana abortion law. The Indiana measure would require that parents be notified when a girl under 18 is seeking an abortion, even in situations in which she has asked a court to provide consent instead of her parents.

The 7th circuit eventually denied the hearing. Barrett joined a dissent for denying the rehearing authored by Judge Michael Kanne, who said, “Preventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure.”

Also in 2019, Barrett joined an opinion on a First Amendment case involving a Chicago law that banned pro-life activists from approaching women entering an abortion clinic. The Chicago law was modeled after a Colorado law that was upheld by the Supreme Court in a case in 2000. Judge Diane Sykes wrote in the opinion that the appeals court had no choice but to follow the top court’s precedent.

“That’s a losing argument in the court of appeals. The Court’s intervening decisions have eroded [Hill v. Colorado]‘s foundation, but the case still binds us; only the Supreme Court can say otherwise,” she wrote.

Reuters contributed to this report.

Follow Janita on Twitter: @janitakan