With the fate of Roe v. Wade on the line at Wednesday’s oral arguments in Dobbs v. Jackson Women’s Health Organization, all ears were trained on the Supreme Court’s newest justice, Amy Coney Barrett.
People on both sides of the abortion debate wanted to get a sense of how the conservative bloc’s only woman would intervene in one of the most fraught issues facing the court — and American women. Whether fairly or not, Justice Barrett’s gender has always loomed large in speculation about her impact on the court’s abortion jurisprudence. When former President Donald Trump selected Brett Kavanaugh to replace Justice Anthony Kennedy, he reportedly assured confidants that he was holding then-Judge Barrett in reserve in the event he was able to name Justice Ruth Bader Ginsburg’s successor, then the court’s most stalwart defender of abortion rights.
Although conservatives usually denounce identity politics, many nonetheless saw Judge Barrett’s gender as an asset as the court crept steadily to the right — and toward a confrontation with Roe. For instance, in a 2018 op-ed for Bloomberg, the conservative pundit Ramesh Ponnuru urged Judge Barrett’s nomination in large part because if a more conservative Supreme Court overruled Roe v. Wade,“it would be better if it were not done by only male justices, with every female justice in dissent.”
But if conservatives viewed Justice Barrett’s gender as political cover for their decades-long project to dismantle reproductive rights, on Wednesday the justice herself offered a more complicated tableau. Although she did not explicitly invoke her identity as a woman, she seemed to lean into her identity as an adoptive mother — and in fact, the only mother on the court — to question the underpinnings of Roe.
When the court reaffirmed Roe in Planned Parenthood v. Casey in 1992, the justices tethered the right to choose to the recognition that “motherhood has a dramatic impact on a woman’s educational prospects, employment opportunities, and self-determination.” In a colloquy with Julie Rikelman, who argued for the Mississippi abortion clinic in Wednesday’s arguments, Justice Barrett suggested that the advent of safe haven laws, which allow parents to relinquish newborns for adoption by leaving them at hospitals or police stations, relieved women of the burdens of “forced motherhood” that impeded their professional and educational ambitions. It was a startling exchange — one that suggested that anti-abortion laws raise few constitutional issues in a world where adoption is available to those who wish to avoid parenthood.
Justice Barrett, more than any other member of the court, is in an optimal position to assess the burdens of motherhood and their impact on career ambitions. She is, after all, the mother of seven children and has successfully combined work and family — a point that senators on both sides of the aisle reiterated during her confirmation hearings. In a Rose Garden ceremony for then-Judge Barrett, President Trump introduced his nominee as “a profoundly devoted mother” who would be the first mother of school-age children to serve on the court.
Justice Barrett’s performance at Wednesday’s oral arguments highlighted how her identity as a mother might inform her jurisprudence. In the event that Roe survives this clash with the court, there are plenty of other cases coming down the pike that will allow the court to reconsider this embattled precedent. Percolating in the lower federal courts are challenges to so-called reason bans that prohibit abortion if undertaken for purposes of sex selection or race selection, or because of the detection or diagnosis of a fetal anomaly.
If Justice Barrett is willing to cast the vote that dismantles Roe — the decision that is credited with widening educational and employment opportunities for women — a reason-ban challenge would allow her to do so in terms that align with her identity: a mother who has raised seven children while simultaneously ascending to the pinnacle of the legal profession.
Justices, as we know, are not insulated from identity politics. Justice Thurgood Marshall, the first African American to serve on the court, routinely surfaced issues of race that his white colleagues may have overlooked. Despite their ideological differences, Justice Marshall’s successor, Justice Clarence Thomas, does so as well. In a 2003 case that considered the constitutionality of a statute that made it illegal to burn a cross in public with the intent to intimidate others, Justice Thomas issued a separate opinion documenting the Black experience with the Ku Klux Klan. More recently, in a gun rights challenge, Justice Thomas invoked the death of Emmett Till and other historic episodes of racial violence as evidence of the need for more robust Second Amendment rights.
Should the court take up a reason-ban challenge, Justice Thomas’s example in these earlier cases may provide a template for Justice Barrett to explicitly invoke her own experiences — and her identity — to weigh in on the most fraught issue of our time. Her symbolic authority as the mother of two Black children and a child with Down syndrome might transform a decision overruling Roe from an expression of raw partisanship to a more publicly palatable meditation on the broader questions of maternity, personhood and dignity that the anti-choice movement has been emphasizing for years.
Melissa Murray is a professor of law at New York University and a co-host of the “Strict Scrutiny” podcast.
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