Donald Trump has said it “is certainly possible” Amy Coney Barrett will be part of a supreme court decision overturning Roe v Wade, the 1973 ruling which made abortion legal in the US.
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“She is certainly conservative in her views, in her rulings, and we’ll have to see how that all works out but I think it will work out,” the president told Fox & Friends Weekend of his new nominee to the court, in an interview broadcast on Sunday.
Asked if Barrett, if confirmed, would be part of a 6-3 conservative-liberal ruling “on a life issue”, Trump said: “It’s certainly possible. And maybe they do it in a different way. Maybe they’d give it back to the states. You just don’t know what’s going to happen.”
Progressives and Democrats fear the Indiana appeals judge’s strict Catholicism and conservative views will colour any rulings on abortion rights arising from any of 17 cases currently making their way through the courts.
They also worry about the Affordable Care Act, which provides health insurance to millions. An attempt to strike it down is due before the court on 10 November.
Republicans in the Senate are rushing to confirm Barrett before election day, 3 November. Democrats oppose that timetable and are backed by public polling which shows majorities saying the next president should choose the replacement for the liberal justice Ruth Bader Ginsburg, who died aged 87 last week.
In the short term, such polling does not matter. Democrats have few options. On Sunday the Senate minority whip, Dick Durbin of Illinois, told ABC’s This Week: “We can slow it down perhaps a matter of hours, maybe days at the most, but we can’t stop the outcome.”
Any effect of the Barrett nomination on the election result remains of course to be seen. Trump focused on the issue at a rally in Pennsylvania on Saturday night. Debbie Stabenow, a Democratic senator from Michigan, another battleground state, told Fox News Sunday she thought Barrett would take away healthcare access and said she was “deeply concerned”.
Joe Biden, the Democratic nominee who leads national and most swing state polls, was due to speak on Sunday. Responding to the unveiling of Barrett at the White House on Saturday, he said Trump had nominated “a jurist with a written track record of disagreeing with the court’s decision to uphold the Affordable Care Act. Vote like your healthcare is on the ballot – because it is.”
Such messaging worked for Democrats in 2018, when they took back the House. On Sunday, the House speaker, Nancy Pelosi, told CNN’s State of the Union: “The antidote to whatever [Trump] does is to vote, vote, vote. Vote for affordable care, vote for your pre-existing condition, vote for your safety and vote for your health.”
The court upheld the ACA in 2012, 5-4 with Chief Justice John Roberts the swing vote. On Fox News Sunday, Eugene Scalia, the US labor secretary and son of the late conservative justice Antonin Scalia, for whom Barrett clerked, dismissed the importance of Barrett’s writings attacking Roberts for that decision.
“It’s a red herring,” Scalia said. “It reflects frustration on the part of the Democrats as to how they might attack the nomination.”
Trump has placed two conservatives on the court. The second was Brett Kavanaugh, whose confirmation descended into partisan rancour over allegations of sexual assault which he vehemently denied.
On Saturday, the Senate judiciary chair, Lindsey Graham, told Fox News it was “appropriate to challenge the nominee” but if Democrats “treat Judge Barrett like they did Justice Kavanaugh, it’s going to blow up in their face big time”.
John Kennedy of Louisiana told Fox News Sunday: “If my Democratic friends want to turn [the Barrett hearings] into an intergalactic freak show, bring back the protesters with the genitalia-shaped headgear, I can’t stop them.”
The Republican also said justices should not be “politicians in robes”, and said he wanted “to be assured [Barrett was] not one of these justices that tries to rewrite the constitution to advance a political agenda that the voters won’t accept”.
According to Pew Research, about six in 10 Americans “say abortion should be legal in all or most cases”.
Even with two Trump nominees in place, the court has not always ruled in the president’s favour, recently upholding LGBTQ+ rights and going against the administration on immigration. The president told Fox he had been “surprised”.
“You know, you think you know somebody and then you get rulings a little bit different than you think could happen,” Trump said. “So you never know what’s going to happen.”
Those rulings came from a court with more conservatives than liberals, but with Roberts and in the LGBTQ+ case Trump appointee Neil Gorsuch crossing the aisle. With Barrett, the balance would be 6-3.
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Shoring up support from evangelical groups, whose leaders he met before unveiling Barrett, Trump has committed to choosing anti-abortion justices.
He told Fox that in meetings with Barrett, he “didn’t discuss certain concepts and certain things. And some people say you shouldn’t. I don’t see any reason why you shouldn’t. But I decided not to do it. And I think it gives her freedom to do what she has to do. She has to make rulings. But I think she’s going to make a lot of people very proud.”
When nominating Kavanaugh, Trump was famously reported to have said he was “saving” Barrett “for Ginsburg”.
In a statement on Saturday, Alexis McGill Johnson, president of the healthcare provider Planned Parenthood’s political action fund, said: “Nominating Amy Coney Barrett is a particular insult to the legacy of Justice Ginsburg. Barrett’s history of hostility toward reproductive health and rights, expanded healthcare access and more demonstrate that she will put Justice Ginsburg’s long record of ensuring that everyone receives equal justice under the law at risk.”
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