A Vanity Fair writer is trying to suggest Judge Amy Coney Barrett could possibly see “a scenario in which abortion should be punishable by death” because the Supreme Court nominee did what any fair-minded judge should do and refuse to answer how she would rule in hypotheticals.
Vanity Fair’s Bess Levin called Barrett’s refusal to say how she would rule in hypothetical cases before any slightly similar case came before her a “schtick,” even though just about every previous Supreme Court nominee has said something similar. Barrett even quoted Supreme Court Justice Elena Kagan’s confirmation hearings in which she said the same. Kagan’s refusal to answer hypotheticals was based on former Supreme Court Justice Ruth Bader Ginsburg’s own statement from her 1993 confirmation hearings, in which she said during her opening statement that a nominee should give “no hints, no previews, no forecasts” about legal issues they might face before the court. Of course, Ginsburg didn’t strictly adhere to that “rule,” offering hints, previews, and forecasts as to how she would rule on numerous hot-button issues including abortion.
Still, the media’s subsequent treatment of nominees who attempt to actually follow Ginsburg’s statement is telling. When Kagan was being questioned by senators, The New York Times headline suggested she “Follows Precedent by Offering Few Opinions.” The headline for Barrett, however, read: “Barrett’s Testimony Is a Deft Mix of Expertise and Evasion.”
It didn’t matter what Barrett said – she was going to be attacked by the Left regardless. Yet, she stuck to a principle of not revealing how she would rule in broadly worded hypothetical cases. For this, she is now being accused of potentially supporting the death penalty for women who get abortions.
The allegations stem from a question asked by Sen. Sheldon Whitehouse (D-RI). Whitehouse asked Barrett in a written follow-up question: “Under an originalist theory of interpretation, would there be any constitutional problem with a state making abortion a capital crime, thus subjecting women who get abortions to the death penalty?”
Barrett’s written response was for Whitehouse to “Please see my answer to Question 100.” The answer, then, was “As a sitting judge and as a judicial nominee, it would not be appropriate for me to offer an opinion on abstract legal issues or hypotheticals.”
From this, Levin sees Barrett supporting the death penalty for women who get abortions. To further bolster such a claim, Levin points to allegedly terrible opinions Barrett wrote in previous cases from her time as a judge:
As for abortion, Barrett wrote in one court opinion that the procedure is “always immoral”; dissented in Box v. Planned Parenthood of Indiana and Kentucky Inc., arguing to uphold an Indiana law requiring doctors to notify the parents of a minor seeking an abortion; and dissented in the case of Commissioner of the Indiana State Department of Health v. Planned Parenthood of Indiana and Kentucky Inc., arguing in favor of a law requiring that fetal remains be buried or cremated. And, as we heard during her three days before the Senate Judiciary Committee, she signed a letter calling for the end of the “barbaric” Roe v. Wade.
Barrett, however, only signed on to the part of the letter that opposed “abortion on demand,” not the part Levin now uses against her.
Barrett’s writing in one court opinion that abortion is “always immoral” was actually her reciting how the Catholic Church sees abortion. Barrett is a Catholic, but said this would “have no bearing on the discharge of my duties as a judge.”
It’s quite a stretch to suggest Barrett would support the death penalty for abortion based on her rulings that parents should be notified when their minor children are having a serious medical procedure or that fetal remains should be buried or cremated, but such is the media today.
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