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Question to Amy Coney Barrett: What does your 1998 article say about ruling on abortion cases?

Question to Amy Coney Barrett: What does your 1998 article say about ruling on abortion cases?
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When Amy Coney BarrettAmy Coney BarrettFor Thanksgiving, the Supreme Court upholds religious liberty Cardinal Dolan hails Supreme Court decision on churches, COVID-19 Cuomo blames new conservative majority for high court's COVID-19 decision MORE testified before the Senate Judiciary Committee in 2017, after she was nominated by President Trump to the United States Court of Appeals, Senator Dianne Feinstein botched the issue of religion. Feinstein, the ranking Democrat, offended Barrett, many Catholics, and many Americans who believe in the constitutional ban against religious tests, by telling Barrett that “the dogma lives loudly within you.”

Demeaning religious views by calling them “dogma” insults all Americans of faith. It also backfired as a tactic, turning this obscure judge into a folk hero among many religious Americans and raising the chances she would be nominated to the Supreme Court. Senate Democrats should be more cautious this time. It does not mean they should not ask about her moral and religious beliefs or how they could impact her decisions. Barrett has opened the door to debate on whether she will recuse herself from cases in which the law may conflict with her moral and religious imperatives.

In 1998, the year after she graduated from Notre Dame Law School, and while she clerked for a federal judge, Barrett wrote a journal article with John Garvey on the issue of whether and when orthodox Catholic judges must be recused, or recuse themselves, from cases on which their legal obligations could conflict with the teachings of their religion. The article focused on capital punishment, but its reasoning can apply to abortion and other issues. The article was premised on the idea that “we need to know whether judges are sometimes legally disqualified from hearing cases that their consciences would let them decide.” Since Barrett has clearly written this, she has invited debate on this thorny issue.

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Her article correctly concludes that no Catholic judge should be recused simply because he or she is Catholic. That would amount to a prohibited religious test. Further, many Catholics do not accept all the teachings and mandates of their church. There are others, such as John Kennedy, Mario Cuomo, and William Brennan, who put their oath to the Constitution and other laws above their religious obligations. The article cited the defense from Cuomo of his decision to allow abortion as governor of New York. He declared that the “Catholic who holds office in our pluralistic democracy” must give freedom to those who hold beliefs “different from specifically Catholic ones, sometimes contradictory to them,” and that critics have the right to engage in conduct “which we would hold to be sinful.”

The article then discussed an answer by Brennan during his confirmation hearing in 1957, asking whether he could abide by his oath in cases where “matters of faith and morals got mixed up with matters of law and justice.” Brennan said that he took his oath “just as unreservedly” as the senators present and that there is not any “obligation of our faith superior to that. What shall control me is the oath I took to support the Constitution and laws of the United States and so act upon the cases which come before me for a decision that it is that oath and that alone which governs.”

What Barrett noted with the position of Cuomo, Brennan, and presumably Kennedy is most significant. “We do not defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty,” she wrote. So it means Barrett was unwilling to commit to what other Catholic public officials have done to resolve conflicts between the law and religion in favor of the law. Barrett should now be asked whether she stands by what she wrote in 1998 and, if so, what is her position as an orthodox Catholic judge who may be asked to hear cases on abortion and the death penalty? Would she recuse herself from all such cases? Would she have criteria for recusal from some decisions but not all?

What she wrote about recusal in capital punishment cases is even more relevant to abortion cases, because the views of the Catholic church are far more compulsory regarding the latter than the former. Barrett wrote, “The prohibitions against abortion and euthanasia, properly defined, are absolute. Those against war and capital punishment are not.” The article concludes, “Judges cannot, nor should they try to, align our legal system with the moral church teaching whenever the two diverge. They should, however, conform their own behavior to the church standard.”

Barrett should be asked what this means when the church standard is at odds with what the Constitution or other laws demand. She has not tried to hide that her views with regard to the primacy of the Constitution over the teachings of the church appear to be different from those of several other Catholics who have held office in our democracy. So it is perfectly suitable to ask about her differences in a way that respects her religious views and gives her the opportunity to justify her position.

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She could note that her legal view on abortion are not in conflict with the doctrine of her church since, under her view of the Constitution, there is no right to abortion despite the decision in Roe versus Wade, which she regards as erroneous. Nor would it be suitable to determine whether her legal view is unconsciously influenced by her religion. But she could be asked about her views on precedent. Despite her opinion on the infirmity of Roe versus Wade, would she feel bound as a justice to apply such firm precedent as a matter of law? Could she rule if that is the case when it so clearly conflicts with the binding doctrine of her religion?

Barrett has said that her religion commands her to believe, and to act on the belief, that abortion is always immoral under all circumstances. She should be asked whether she believes a fetus has a right to life under the Constitution. If it does then it might follow that no state has the power to allow abortions under any circumstances. If that is her view, and she may very well say it is not, that could be an overreach for some Republicans, who believe the issue of abortion should be left to the states.

Barrett is both a serious intellectual and a serious Catholic who has given considerable thought to the potential conflicts between her faith and her obligations under secular law. Senators and the public should give her the opportunity to elaborate on this important and relevant issue before she is confirmed for a seat on the Supreme Court, where she is likely to serve for decades and could be asked to cast many votes involving issues in which the governing law may conflict with the doctrine of her church.

Alan Dershowitz, professor emeritus at Harvard Law School, served on the legal team representing President Trump during the Senate impeachment trial. He is an author whose newest book out is “The Case For Liberalism in an Age of Extremism” available on Kindle. His podcast is “The Dershshow” available on Apple and Spotify. You can follow him on Twitter @AlanDersh.