8 SR THE NEW YORK TIMES, SUNDAY, OCTOBER 25, 2020
W
E SAW the future of the
Supreme Court last
week, and its name is
Amy Coney Barrett. The
court’s 4-4 deadlock Monday on
whether Pennsylvania must count
some late-arriving ballots said it all.
The four most conservative justices
sided with the Republican Party, which
has fought tooth and nail against per-
mitting states to make accommoda-
tions to the Covid-19 pandemic and the
Trump-induced collapse of the United
States Postal Service by relaxing rules,
including deadlines. Justices Clarence
Thomas, Samuel Alito, Neil Gorsuch
and Brett Kavanaugh voted to grant
the party’s request for a stay of a Penn-
sylvania Supreme Court decision pro-
viding that ballots will be counted if
postmarked by the night of Nov. 3 and
received within the following three
days.
Chief Justice John Roberts joined the
Supreme Court’s three remaining liber-
al justices, Stephen Breyer, Sonia So-
tomayor and Elena Kagan, in voting to
let the decision stand. Justice Ruth Ba-
der Ginsburg would undoubtedly have
voted with them.
Can I be certain that soon-to-be Jus-
tice Barrett, President Trump’s choice
to fill Justice Ginsburg’s seat, would
have been that fifth vote for the conser-
vatives? Can I assume that she would
really have been so bold, so unabashed
about carrying the Republican Party’s
water within days of her arrival follow-
ing the strong-arm tactics the party
used to secure her confirmation?
No, of course I can’t. All I know for
sure is who her friends are — and what
she said and didn’t say during her two
long days before the Senate Judiciary
Committee recently. I don’t know
whether the four justices who voted to
block the Pennsylvania court’s deci-
sion have ever met Judge Barrett. But
they seem to consider her their ally-in-
waiting.
I say that because when the Su-
preme Court denies a stay without
opinion, as it did on Monday, there is no
requirement or general practice for in-
dicating the actual vote or the identi-
ties of the justices who voted one way
or another. When a tie vote makes the
court unable to decide a case it has ac-
tually heard on the merits, a more con-
sequential step than the mere denial of
a stay, the court says nothing more
than “the judgment is affirmed by an
equally divided court.” We are left to
guess who was on which side.
Yet here, the four justices who voted
unsuccessfully for a stay chose to re-
veal themselves by noting that they
“would grant the application.” Why did
they do that? It’s not too cynical to sup-
pose that they wanted to make it clear
to the base how much they needed
Judge Barrett to join them, now, before
other cases like this one inevitably
come along. Do Supreme Court justices
have a base? These do.
On the subject of abortion, we don’t
need to read tea leaves. We just need to
know how to read. And I don’t mean the
statement Judge Barrett signed back
in 2006 opposing “abortion on demand”
and supporting the “right to life from
fertilization to a natural death.” I mean
an opinion she joined in 2018 calling for
her court, the United States Court of
Appeals for the Seventh Circuit, to re-
consider as a full court an opinion by a
smaller panel of the court that had in-
validated an Indiana anti-abortion law.
Because the opinion was a dissent,
one that she joined but that she didn’t
write, and because the requested full-
court rehearing never took place, the
case, Planned Parenthood of Indiana
and Kentucky v. Commissioner of the
Indiana State Department of Health,
has remained under the radar. It
emerged only once during last week’s
hearing, in a question by Senator Pat-
rick Leahy, Democrat of Vermont.
Judge Barrett deflected the questionwith an answer that struck me as close
to disingenuous, and the senator, either
pressed for time or not fully under-
standing the exchange, let the matter
drop.
For that reason, and because I see
this procedurally obscure case as pro-
viding the clearest indication of how
Judge Barrett will approach abortion
cases, it’s worth unpacking in some de-
tail.
In 2016, the Indiana legislature
passed and Gov. Mike Pence signed an
abortion law with two provisions. One
required clinics to treat aborted fetuses
as deceased persons, by cremation or
burial. The other prohibited doctors
from performing an abortion knowing
that the woman’s decision was based
on the sex or race of the fetus or be-
cause of a prenatal diagnosis of Down
syndrome or “any other disability.” A
federal district judge barred enforce-
ment of both provisions, and a Seventh
Circuit panel upheld that ruling in April
2018.
One of the three judges on the panel,
Daniel Manion, dissented from the fe-
tal-remains portion of the opinion. He
then said he found it “regrettable” that
Supreme Court precedent required
him to concur with his colleagues that
the other provision was unconstitution-
al, acknowledging that the Supreme
Court has ruled that before fetal viabili-
ty, a woman has an absolute right to an
abortion.
He then proceeded to rail against the
court’s abortion jurisprudence in a sep-
arate 20-page opinion that contained
the blithe assertion that “children withDown syndrome bring joy to everyone
around them” — an observation that
had no bearing on the legal issue and
that coming from a 78-year-old man
might well appear cavalier to a young
family struggling to grasp the uncer-
tain future that such a diagnosis por-
tends; most families faced with a Down
syndrome diagnosis choose abortion.
“Indiana made a noble attempt to
protect the most vulnerable members
of an already vulnerable group,” Judge
Manion wrote, adding, “The Supreme
Court’s abortion jurisprudence proved
an insurmountable obstacle.”
The state sought rehearing before
the full court on the fetal-remains pro-
vision. It did not ask the court to recon-
sider the validity of the provision pro-
hibiting abortions sought for particular
reasons. The court denied rehearing
over the dissent of five judges in an
opinion by Judge Frank Easterbrook.
His opinion is a remarkable document.
Even though the state had not put the
prohibition portion of the statute at is-
sue, Judge Easterbrook proceeded to
address it at length, calling it “an anti-
eugenics law.” Referring to the Su-
preme Court’s 1992 decision in Planned
Parenthood v. Casey, Judge Eas-
terbrook wrote:Casey and other decisions hold
that, until a fetus is viable, a
woman is entitled to decide
whether to bear a child. But there
is a difference between ‘I don’t
want a child’ and ‘I want a child,
but only a male’ or ‘I want only
children whose genes predict
success in life.’ Using abortion to
promote eugenic goals is morally
and prudentially debatable on
grounds different from those that
underlay the statutes Casey
considered. 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.He added, “We ought not to impute
to the justices decisions they have not
made about problems they have not
faced.”
In other words, Judge Easterbrook,
and the judges who joined him in dis-
sent, would have, if they had the power,
reinterpreted the Supreme Court’s
precedents to uphold a statute that
those precedents clearly prohibit. One
of those judges was Judge Barrett.
Asked about the case by Senator
Leahy, Judge Barrett said this, refer-
ring to “the eugenics portion of the
bill”:It is true the state of Indiana did
not seek ‘en banc’ rehearing on
that, but we had many other states
enter the case urging us to take
that claim up, and what Judge
Easterbrook’s dissent did was
explain why he thought it was an
open question, but one that’s left to
the Supreme Court, and we did not
reach any conclusion with respect
to it.No, Judge Barrett. It’s not an “open
question.” It’s a question with one an-
swer and one answer only. For now.
(In May 2019, the Supreme Court,
over Justice Ginsburg’s dissent, over-
turned the Seventh Circuit and upheld
the fetal-remains portion of the statute.
The court denied Indiana’s appeal on
the prohibition portion, letting stand
the panel’s decision on its unconstitu-
tionality. A separate opinion by Justice
Thomas mirrored, fervently and at
length, Judge Easterbrook’s com-
plaint.)
Judge Barrett had left the witness
chair by the Judiciary Committee’s
wrap-up day. But outside the hearing
room, far from Washington, the lock-
step march of the Trump administra-
tion’s anti-abortion judges continued.
With two Trump judges in the 2-1 ma-
jority, a panel of the United States
Court of Appeals for the Sixth Circuit
upheld a Kentucky law that will have
the effect of closing the two remaining
abortion clinics in the state, a decision
that the dissenting judge, Eric Clay,
called “terribly and tragically wrong.”
The law requires abortion clinics, to
maintain their license, to have a “trans-
fer agreement” with a nearby Ken-
tucky-licensed hospital to accept any
patients needing care. This is a copycat
law in imitation of the admitting-privi-
leges requirement that the Supreme
Court has invalidated in two successive
decisions. Needless to say, the two
Trump appointees in the majority,
Judges Joan Larsen and Chad Readler,
had to jump through many hoops to jus-
tify upholding this law.
But the richest part of their opinion
was their assertion that the two clinics,
neither of which has been able to reach
a hospital agreement, hadn’t demon-
strated with sufficient persuasiveness
that they would actually have to close.
That’s because the law offers the
chance to apply for a 90-day waiver. To
the clinics’ objection that they can’t re-
main in business if they can’t assure
their staff of employment after 90 days,
Judge Larsen had this to say in her ma-
jority opinion: “We must presume that
the inspector general will consider
waiver applications in good faith and
will not act simply to make it more diffi-
cult for women to obtain an abortion.”
It was somehow fitting for this deci-
sion to appear on the day the Judiciary
Committee finished its astonishingly
rushed confirmation hearing for Judge
Barrett. As I read the majority opinion,
this thought occurred to me: Here, with
Roe v. Wade still on the books, a state
can force the closure of all abortion
clinics within its borders. So at this
rate, when the Supreme Court gets
around sooner or later to overturning
Roe, how will anyone be able to tell?ERIN SCHAFF/THE NEW YORK TIMESLINDA GREENHOUSEThe Supreme Court’s Future
Amy Coney Barrett’s
allies, and what she has
written or signed, are key.
Gift subscriptions start at $25.
Visit nytimes.com/gift or call 1-800-NYTIMES.Need a gift? Consider giving a subscription to
The New York Times. Our in-depth, quality
journalism spans nearly every topic and interest,
making The Times the perfect gift for just about
everyone — and every occasion.
.