Democratic senators have cited the legal theory to argue that Roe v. Wade has “super-precedent” and thus is even more protected from reversal than a normal Court decision would be.
Barrett on Wednesday affirmed that the abortion cases Roe v. Wade and Planned Parenthood v. Casey, as well as the gun rights case D.C. v. Heller, are not “super-precedent” as they are the subject of active litigation. According to some legal scholars, she has said, cases that are “super-precedent” are those that are so well-established, they are challenged by virtually no one.
When asked how she would rule on a late-term abortion legal case, Barrett told Sen. Thom Tillis (R-N.C.) that she review previous abortion rulings “and their application to particular contours of the law.”
Although she did not opine on certain religious freedom cases, Barrett did explain the Court’s reasoning behind multiple church-state rulings.
When Sen. Mike Lee (R-Utah) asked her about the freedom of churches to access public benefits, she said that the Supreme Court “has been very clear that religious institutions can’t be discriminated against” and barred from public benefits simply on account of their religious status. She was referring to cases involving state prohibitions on religious groups getting public benefits.
Barrett also explained another religious freedom case decided by the Court this summer, the ministerial exception case of Our Lady of Guadalupe School v. Morrisey-Berru.
In that case, the Court ruled that two Catholic grade school teachers qualified as religious ministers; thus, the schools were protected from employment discrimination lawsuits when they terminated the teachers’ contracts due to performance.
The case was significant, as religious schools could face an increase of employment discrimination lawsuits in the future by teachers fired for contracting same-sex marriages.
Barrett on Wednesday acknowledged that courts could have difficulty determining just who qualifies as a minister of religion; a teacher might not teach religion at a school, but might still be expected as part of his or her job to lead students in prayer and attend religious services with them—both possibly “ministerial” activities.
The Court’s decision, Barrett said, “gives a lot of deference to the schools” in these cases.
Barrett was also asked about the distinction of religious freedom in the First Amendment, as detailed in a Sept. 3 majority opinion she joined on the Seventh Circuit.
The Illinois Republican Party in that case had argued that the state’s governor J.B. Pritzker broke the law in exempting religious gatherings from his public health restrictions while leveling the restrictions against other assemblies. The party said that the governor was discriminating against some non-religious “speech.”
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The court ruled in favor of the state. Barrett explained on Wednesday that the “free exercise of religion” under the First Amendment is separate from, and not just a subset of, free speech, which is also protected under the amendment.
“Free exercise of religion is singled out for its own protection in the First Amendment,” she said.
Hawley went on to praise the opinion, noting that churches and mosques have been singled out by state public health orders during the pandemic and are being treated less favorably than restaurants or stores.
Democratic senators grilled Barrett on other issues on Wednesday, including the Affordable Care Act (ACA), the Voting Rights Act, and whether a president can pardon himself before leaving office.
Barrett explained the legal doctrine of “severability” to Sen. Dianne Feinstein (D-Calif.), the committee ranking minority member; the doctrine has been part of discussions on whether the Court could strike down the ACA’s individual mandate but keep the rest of the law in place.
The doctrine is meant for the Court to not undo the work of Congress when the body does not want the Court to do so, she said. It is meant to say ‘Well, would Congress want the statute to stand even with this provision gone? Would Congress still have passed the same statute without it?’”