The Amy Coney Barrett Nomination is a Threat to Civil Rights

President Trump walks with Amy Coney Barrett along the West Wing Colonnade on Sept. 26. (White House Photo / Shealah Craighead)

On Monday, Supreme Court nominee Amy Coney Barrett’s Senate Judiciary Committee confirmation hearings began. These hearings are critical to uncovering what kind of Supreme Court justice she will be.

Her record as a 7th Circuit Court of Appeals judge and her scholarship as a professor at Notre Dame Law School offer enlightening insight into how she might rule on issues impacting communities that have been historically and modernly marginalized—such as the LGBTQ community and women, especially low-income women and women of color. (After all, nearly half of women who have abortions live below the federal poverty line.)

In a virtual briefing, “Supreme Court Nominee Amy Coney Barrett and the Threat to Our Civil Rights,” hosted by the Lawyers’ Committee for Civil Rights Under Law and National Women’s Law Center (NWLC), Erinn Martin, Theresa Lau and Phylicia Hill discussed what’s at stake if Barrett ascends to the bench of the high Court.

The group also sounded the alarm on two consolidated Voting Rights Act cases recently taken up by the Supreme Court.

Lau—senior counsel for judges and courts, reproductive rights and health at NWLC—started the discussion with Judge Barrett’s record on healthcare. The Affordable Care Act (ACA) is a crucial tool for the health and wellbeing of women across the nation and has also effectively ended widespread discrimination experienced by people with uteruses.

An ACA case, California v. Texas, is due to be heard by the Supreme Court one week after the election. Lau explained that Judge Barrett has a record of criticizing the ACA and would likely vote to strike it down—putting women and people with pre-existing conditions at grave risk.

Hill, counsel with the Economic Justice Project at the Lawyers’ Committee, spoke specifically about reproductive health care and access to reproductive health care.

If the ACA is struck down, there will be far-reaching generational consequences for women already facing numerous barriers. The threat poses the greatest risk to Black women who are “already disproportionately uninsured, suffer higher rates of maternal and infant mortality, and lack access to a variety of reproductive healthcare services.”

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Black women will also bear the brunt of restrictions on abortion access. Judge Barrett has made it clear that she would not uphold abortion rights, even if she doesn’t think Roe v. Wade will be expressly overturned. Hill said Judge Barrett “seems posed to paralyze abortion rights by restricting access to abortion clinics.”

Hill explained that 17 abortion cases are currently making their way through the courts and could be heard by the Supreme Court. Judge Barrett has shown her willingness to allow states to restrict abortion access through onerous restrictions on abortion clinics and through laws preventing sex, race and disability selective abortions.

Judge Barrett also poses a risk to education, particularly to the Title IX prohibition against sex discrimination. She issued an opinion in Doe v. Purdue that “made it easier for those who are held accountable for sexual assault to sue their school.”

“Her decision allows for men who have been disciplined for sexual assault to use Title IX—which is a statute that is intended to protect people who are victims of sexual assault and sexual harassment,” Lau said, to allege that the school discriminated against the accused.

Martin, policy counsel for the Public Policy Project at the Lawyers’ Committee, highlighted Judge Barrett’s view that Title IX “doesn’t extend to transgender Americans at all.” Judge Barrett said, “It does seem to strain the text of the statute to say that Title IX demands it.”

This directly contradicts the Supreme Court’s 2020 decision in Bostock v. Clayton County, holding that sex discrimination includes discrimination based on sexual orientation or gender identity under Title VII.

Barrett’s record also threatens employment, where Barrett would be likely to favor employers over employees in employment disputes pertaining to wage issues and employment discrimination.

“This poses a particular danger for Black workers and other workers of color who are more likely to be hourly wage workers, experience pay disparities in both hourly and salary employment, and to bring race discrimination cases,” said Hill.

Barrett’s confirmation poses a threat to people of color and women in critical aspects of their lives: voting, healthcare, education and employment. Look out for these issues and more at her confirmation hearings this week. 

You can watch the full briefing here.

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Mariah A. Lindsay is an attorney and the senior executive policy fellow and coordinator of programs with the Center for Biotechnology and Global Health Policy at UCI Law. She is also a producer on the podcast "On the Issues with Michele Goodwin."