To Sit or Not to Sit? Can Amy Coney Barrett Fairly Judge an Abortion Case?

President Donald Trump nominated Barrett to the Supreme Court on September 26, 2020. Photograph Source: The White House – Public Domain

The Senate Judiciary Committee is about embark on the important task of determining whether President Trump’s newest nominee to the United States Supreme Court, Amy Coney Barrett, is qualified to serve as a Justice.

A Seventh-Circuit, federal appellate court judge and Notre Dame law professor, Judge Barrett is variously described as a tough, originalist conservative cut in the mold of right-wing beacon Antonin Scalia, for whom she clerked. She is the mother of seven. She is also a devout Roman Catholic.

In judicial appointments, a person’s religion shouldn’t matter. In fact, the Constitution’s Article VI prohibits any religious test for federal public office. But, in this case, Judge Barrett’s Catholic religion is relevant because she, herself, has made it an issue.

Presently, there are five Roman Catholics serving on the Supreme Court: John Roberts, Chief Justice, and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh and Sonia Sotomayor. Of these, only Justice Sotomayor is considered progressive.

The political excitement surrounding Judge Barrett’s nomination comes from religiously conservative and pro-life individuals who recognize that, with her seated on the Court, there will be, for the first time, a solidly conservative, five-member majority capable of overturning Roe v. Wade, the decision protecting women’s right of choice and reproductive freedom. (It is unclear how conservative Justice Neil Gorsuch, raised a Catholic, but now an Episcopalian, might vote).

However, before being appointed to the federal bench in 2017, Ms. Barrett co-authored a law review article, “Catholic Judges in Capital Cases,” 81 Marq. L. Rev. 303 (1997-1998). In her article, Ms. Barrett focused on a federal law, 28 U.S.C. § 455, which requires a federal judge or justice to recuse (not participate in a case) where, among other reasons, the judge’s impartiality might be questioned or for reasons of personal bias or prejudice.

Ms. Barrett concluded that because the Catholic Church condemns practices whose point is taking life, for example, in death penalty cases “Judges cannot–nor should they try to–align our legal system with the Church’s moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church’s standard.” “[W]e believe that Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty. This means that they can neither themselves sentence criminals to death nor enforce jury recommendations of death.” Accordingly, the moral impossibility of enforcing capital punishment requires recusal under the federal statute. To be sure, Ms. Barrett’s law review article concedes that “the church’s [death penalty] teaching requires a few qualifications.”

However, she recognized no such qualifications when it comes to abortion. Indeed, she stated “[t]he [Church’s] prohibitions against abortion . . . are absolute; those against . . . capital punishment are not . . . abortion take(s) away innocent life.”

The Catholic Church’s “absolute” condemnation of abortion would make it morally impossible for Justice Barrett to fairly and impartially consider any abortion case, much less, one overturning Roe v. Wade. Any Catholic Justice would be “morally precluded” from upholding an abortion case, and would have to “conform their own behavior to the Church’s standard.” Her Catholic faith would require Justice Barrett to have personal bias against any abortion case.

At least from what she has written, Justice Barrett would have to comply with the federal recusal statue and not participate in any abortion case

This is critically important information about which the Judiciary Committee must thoroughly question Judge Barrett before she is confirmed. Whether one is pro-life or pro-choice, the Senate and public are entitled to know whether Judge Barrett will sit or recuse.

James C. Nelson and  James M. Regnier are former justices on the Montana Supreme Court, both now retired.