Much has been written about Judge Amy Coney BarrettAmy Coney BarrettSupreme Court low on political standing Graham tries to help Trump and McConnell bury the hatchet Are COVID-19 vaccine mandates a strategy to end the pandemic? MORE’s views on abortion. Perhaps most striking is her signature on a 2015 letter to Catholic bishops affirming “the value of human life from conception to natural death,” “an openness to life and the gift of motherhood,” and “marriage and family founded on the indissoluble commitment of a man and a woman.”
When Coney Barrett put her signature on that letter, she probably wasn’t thinking about a future confirmation hearing for a seat on the Court of Appeals for the 7th Circuit. In 2017, she told senators that she sees “no conflict between having a sincerely held faith and duties as a judge,” and that she’d “never impose my own personal convictions upon the law.”
Both the letter and disclaimer are beside the point. It’s Coney Barrett’s approach to the Due Process Clause in judicial opinions — coupled with her scholarly admission that she does not feel obliged to follow precedent that she believes is wrong — that tells us all we need to know.
Roe v. Wade is premised on the concept of due process — a right that dates back to the Magna Carta of 1215. The British king agreed not to take his subjects’ lives, liberty or property without some form of notice and a hearing. The concept made its way into the Bill of Rights in the Fifth Amendment in 1791, binding the federal government. It was extended to the states with the 14th Amendment, which was ratified after the Civil War. The notion of “liberty” has been stretched to cover restrictions on liberty beyond imprisonment. Government cannot arbitrarily take away a physician’s medical license, for example, on the theory that liberty encompasses the ability to choose and pursue a profession. Nor can it expel a state university student without some sort of hearing.
In the 20th century, the Supreme Court took the concept of liberty a bit further, holding in a series of cases that there are some rights that Americans have against government intrusion that are so bound up in the notion of liberty that the government cannot take them away at all — even with fair notice and a hearing. These rights include “the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children.”
None of these “rights” are listed in the Constitution itself. A professed textualist or originalist like Coney Barrett might complain that judges cannot pretend that the Constitution protects families from a government edict that their daughters marry. If government were to pass such a law, an originalist or textualist — in theory — would be hard-pressed to strike it down, on the rationale that it is not in the Due Process Clause itself or part of the common understanding of those terms in 1791 (when women couldn’t even own property or obtain custody of their children post-divorce). The right to stop the government from dictating medical care relating to women’s reproductive organs arose from this very line of authority, which is known as substantive due process.
To be sure, the government is also responsible for protecting social welfare and public health (for example, COVID-19 mask mandates). In Planned Parenthood v. Casey, the Supreme Court acknowledged that the government has an interested in protecting an unborn fetus, adding that the interest is outweighed if a restriction on abortion access puts an “undue burden” on women. The battleground has thus shifted to whether infringements on abortion access, like mandatory waiting periods or spousal consent laws, are too burdensome. This test is subjective.
Coney Barrett has rejected procedural due process challenges — that is, the easy kind. From that baseline, it’s not difficult to see that she could easily conclude that the decision in Roe v. Wade should go too — especially as it is grounded in the more controversial substantive kind of due process.
In Beley v. Chicago, for example, she wrote an opinion rejecting a homeless man’s claim that the city’s refusal to register him under the Illinois Sex Offender Registration Act (SORA) deprived him of due process. The reason he wanted to be registered is to avoid an arrest, conviction and up to five years in prison for failing to register. The homeless man’s attempt to register was rejected by the city of Chicago because he had no identification card or proof of an address. He was later arrested for failing to register.
In her decision, Coney Barrett was unforgiving: “[S]aying that one has the right to register under SORA is like saying that one has the right to serve a sentence or the right to pay taxes.” She rejected the suggestion that the government must “provide due process . . . for actions that create the potential for a later loss” of the man’s freedom from incarceration due to a SORA violation. Coney Barrett identified no “way in which the possibility of incarceration burdens” a homeless person. Case dismissed.
In Cleven v. Soglin, Coney Barrett rejected a due process claim by a city employee. For 20 years, the city told him he was ineligible for retirement benefits because he was an independent contractor. It turned out that the city was wrong, ultimately delaying the man’s retirement payout for five years. When he argued that the city deprived him of a right to his property — i.e., his retirement benefits — without giving him a hearing, Coney Barrett concluded that he could have obtained a hearing after-the-fact through an extraordinary action called a writ of mandamus. Because he didn’t use that option, he had no due process claim.
To be clear, disputed due process issues are not cut-and-dried, and Coney Barrett was not necessarily wrong in ruling as she did in these two cases. But two things are clear: First, some conservatives’ suggestion that there’s only one proper way to read vague constitutional language — i.e., the textualist or originalist way — is disingenuous. Judges judge. Second, if faced with a case seeking to overturn Roe v. Wade, Coney Barrett’s nonplussed approach to due process suggests that she’d feel comfortable reading the Constitution quite narrowly to enable states to ban abortion.
Bear in mind that, even if Roe were reversed, individual states can decide to legalize abortion. A reversal of Roe would put the issue of abortion back in the hands of legislatures, and the voters. Let’s hope that faced with a challenge to a state’s future, hypothetical legislation leglizing abortion, a seasoned Justice Coney Barrett would let the will of the people stand — and not legislate from the bench.
Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books "How to Read the Constitution — and Why,” and “What You Need to Know About Voting — and Why.” Follow her on Twitter @kimwehle.