When a three-judge panel of the Seventh Circuit struck down Indiana’s mandate that fetal remains be buried or cremated, an appeal to the full court by the state was unsuccessful.
Barrett was one of the judges dissenting from the court’s denial of the appeal, and she joined a dissent by Judge Frank Easterbrook. In that dissent, Easterbrook argued that the fetal remains law couldn’t be struck down simply because the Court thought unborn babies were not persons. He also said that the Supreme Court had not overturned state bans on sex-selective or disability-based abortions.
During his questions, Leahy also brought up a pro-life open letter signed by Barrett from 2006 in the South Bend Tribune and asked her if she agreed with a policy position of the group organizing the petition, which opposed in vitro fertilization (IVF).
Barrett said that she had signed the statement on her way out of Church, which “simply said” that “we support the right to life from conception until natural death.” She declined to give her opinion on IVF on Tuesday so as not to affect any future cases before the Court.
Sen. Dick Durbin (D-Ill.) did ask her about race, particularly the impact watching the video of George Floyd had on her. Barrett called it “very, very personal,” having adopted two Black children from Haiti.
Sen. Ted Cruz (R-Texas) also brought up the matter of religious freedom, and criticized his Democratic colleagues for perceived hypocrisy.
He mentioned the religious freedom case of the Little Sisters of the Poor against the federal contraceptive mandate which would “force them to pay for abortion-inducing drugs” among other drugs and procedures.
Religious freedom under the law, he said, extends to the sisters who “take oaths of poverty” and who “devote their lives” to caring for the sick and the elderly.
Cruz criticized his Democratic colleagues for perceived hypocrisy. Pope Francis, he said, has spoken out about issues such as immigration and the environment “that our Democratic colleagues like and agree with,” and they in turn promoted the pope’s appeals on those matters.
“Somehow missing from that amplification,” he said, was Pope Francis’ visit to the Little Sisters of the Poor residence in Northeast D.C. during his 2015 trip to the U.S. A Vatican spokesman told the press that Pope Francis visited the home to show support to the sisters’ during their court battle against the contraceptive mandate.
While Barrett refrained from offering her judicial opinions on controversial issues, Democratic senators still asked her repeatedly about abortion and warned that they did not trust her to be impartial.
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Sen. Richard Blumenthal (D-Conn.) still tried to get Barrett to answer on abortion, citing the example of “Samantha” who was a sexual assault survivor and who felt she need to have an abortion. He asked if that was protected by the Constitution.
Barrett simply answered that Roe v. Wade “clearly held” that women have a right to terminate a pregnancy, and that the 1992 ruling Planned Parenthood v. Casey built upon that decision.
Graham asked her about the issue of abortion, noting that states have enacted “heartbeat” bans on abortion at the detection of a fetal heartbeat—usually around six to eight weeks in a pregnancy—as well as 20-week abortion bans.
Sen. Dianne Feinstein (D-Calif.), the ranking minority member of the committee, brought up the dissent in Planned Parenthood v. Casey, in which Justice Antonin Scalia and others stated that “we believe that Roe was wrongly decided” and could be reversed.
Feinstein asked Barrett if she agreed, and Barrett gave the answer that she would largely repeat throughout the day: she would not give her opinion on Supreme Court precedent, which she said “signals to litigants that I might tilt one way or another in an impending case.”
Feinstein continued pressing her on abortion, guns, health care, and LGBT issues, but Barrett said regarding LGBT issues that she would not give her opinion on the Court’s ruling in the Obergefell decision that legalized same-sex marriage across the country.