As new Justice Amy Coney Barrett takes her seat at the Supreme Court, one of the first decisions on her desk will be the court’s consideration of whether to review Mississippi’s 15-week abortion ban.
Last Thursday, Mississippi Attorney General Lynn Fitch asked the Supreme Court to review the case of the state’s law banning most abortions after 15 weeks. The law had been blocked by a district court in 2018, and an appeals court judge upheld that ruling in December, 2019. Mississippi then appealed the case to the Supreme Court.
The case has been distributed at the Supreme Court for consideration; as soon as Friday, Oct. 30, justices could decide whether to accept the case for review.
The Senate confirmed Barrett to the Supreme Court on Monday, and she was then sworn in to the Court by Justice Clarence Thomas at the White House. A former law professor at the University of Notre Dame, Barrett is a Catholic mother of seven children, including two adopted children from Haiti. She served on the Seventh Circuit Court of Appeals after being confirmed by the Senate in 2017.
During her 2020 confirmation hearings, Democrats on the Senate Judiciary Committee asked her to opine on the Court’s abortion rulings, including on Roe v. Wade and PlannedParenthood v. Casey. Barrett declined to do so, repeatedly affirming that it would be improper for her to speculate on cases that could appear before her as a future justice.
However, Barrett said at her nomination ceremony in September that her judicial philosophy is that “a judge must apply the law as written.” She has also said she believes in applying relevant Supreme Court precedent to cases, where it exists.
In her 2017 written responses to the Senate Judiciary Committee questionnaire, as she was being considered for the Seventh Circuit Court of Appeals, Barrett wrote that “[w]here precedent applies, it controls.”
“If precedent does not settle an issue, I would interpret the Constitution with reference to its text, history, and structure,” she said.
On one abortion-related case at the Seventh Circuit, Barrett sided with the court majority against pro-lifers, citing Supreme Court precedent.
The court ruled in favor of the city of Chicago’s “buffer zone” rule that forbade pro-life sidewalk counselors from approaching within eight feet of abortion facilities. The majority opinion in the case cited Supreme Court precedent in Hill v. Colorado in siding with the city’s rule.
Mississippi’s law allows for abortions after 15 weeks of pregnancy only when the mother’s life or major bodily function is endangered, or when the baby has a severe abnormality and would not be able to survive outside the womb at full term.
Fifth Circuit court Judge Patrick Higginbotham ruled in December of 2019 that states such as Mississippi could regulate abortions pre-viability, but could not pose an “undue burden” on abortion or ban abortions pre-viability.
In recent years, the Supreme Court has ruled against two state abortion laws in Texas and Louisiana that required abortion facilities to adopt the health standards of ambulatory surgical centers.
In June, Chief Justice John Roberts sided with the court majority to strike down Louisiana’s abortion law. He cited Supreme Court precedent, in the court’s 2016 ruling against Texas’ law—despite saying that the 2016 case was “wrongly decided.”