Justice Barrett's dilemma: As abortion cases loom Supreme Court, 6-3, lets Maine healthcare workers Vax order stand

 

In John Does v. Janet Mills, Governor of Maine a 6-3 majority of the Supreme Court declined to block the Maine Governor's regulation that certain health workers get vaccinated against Covid - or lose their jobs.  Because Maine provided for medical exemptions but not religious ones Neil Gorsuch joined by Samuel Alito and Clarence Thomas vehemently dissented.

Lauding the anti-vax objectors as "front line" workers of "bravery and and grace" the dissenting Associate Justices insisted that once it granted any exemption Maine must  protect "the exercise of sincerely held religious beliefs",as the Court did in Masterpiece Cakeshop, favoring a baker who refused to make a cake for a gay wedding.  So far par for the course.  

The only notable wrinkle is that Amy Coney Barrett, joined by Brett Kavanaugh, opted for a go slow approach, declining to use the "emergency docket".  That is a descriptive name for what William Baude (U Chicago law prof and former clerk to John Roberts) labeled the "shadow docket".  His point is that the Court's increased resort to the emergency docket has meant that important precedents are being set or undercut on thin records with less than full consideration.  The spate of orders blocking pandemic-related restrictions on congregant worship is the prime example - chipping away with minimal explanation at long established principles such as Employment Division v. Smith.  In that 1990 decision Barrett's mentor and model Antonin Scalia endorsed a bar on use of mescaline in Native American ritual because the drug law was one of general application.

The Maine mandatory vaccination regulation is such a facially neutral measure that Smith holds courts should allow to stand.  But Justice Gorsuch and his allies urged that since there is a medical exception (e.g. allergy) the state must also accommodate "sincere" religious objections.  Some objectors find objectionable a remote connection to use of fetal tissue at some point in the development phase of the vaccines.  That Pope Francis and Catholic theologians find no obstacle to vaccination and urge that people receive it as a protection of  the public health is of no moment to Gorsuch, et alii.  So long as the individual belief is "sincere" no doctrinal orthodoxy is required.

 Granting an emergency order in such a case was seen by Barrett as using "the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take—and to do so on a short fuse without benefit of full briefing and oral argument."  The two newest justices thus find themselves in an alliance, perhaps momentary, with the Chief Justice.  John Roberts has on occasion been more respectful of precedent and past practice than the ideologically sharper-edged Justices Gorsuch, Alito, and Thomas.

Barrett did not show such reticence in Whole Women's Health or U.S. v. Texas which challenge the Texas `heart beat' law SB 8.  It mandates a bounty of at least $10,000 plus counsel fees to anyone who identifies an abortion performed  beyond six weeks or so post-conception.  The Court allowed that to stand but then granted "pre-judgment certiorari" and scheduled early argument in the two challenges for Monday November 1.  That will soon be followed by oral argument on December 1 in Dobbs v. Jackson Women's Health - the Mississippi law barring abortions after fifteen weeks.

Barrett's reticence yesterday suggests that she is trying to find a way to jettison Roe v. Wade which has been in place her entire life.  The dilemma she faces - as the undoubted deeply committed opponent of legal abortion -is to do so in a way that will have a maximum degree of public acceptance and which coheres with the conservative principles she has long and publicly embraced such as respect for precedent and the need to avoid highly disruptive judicial decisions. 

In 2013 then Professor Barrett embraced the idea that some decisions are super precedents - effectively beyond judicial reach.  In a 2016 article with her late Notre Dame colleague John Nagle she wrote "the force of these super precedents derives not from the Court’s decision to afford them precedential strength but from the People’s choice to accept them.  Once a precedent is deeply rooted, challenges die out and the Court is no longer required to deal with the question of the precedent’s correctness."  Thus even though conservatives like her may doubt the constitutionality of the Social Security Act, or Mapp v. Ohio (search and seizure) the decisions have become bedrock.

But Barrett - like Roberts - will be hard-pressed to find a non-disruptive way to reverse fifty years of constitutional law which has withstood relentless legal attack on the right to elect abortion, and retains the support of a majority according to public opinion polls. This is likely to be especially troublesome for Coney- Barrett who is a member of a conservative evangelical Catholic movement People of Praise.  She is also challenged by the prestigious Notre Dame philosopher and natural law advocate John Finnis.  With Princeton's Robert George - another leading conservative Catholic intellectual - Finnis has urged the Supreme Court in an amicus brief to declare that from the moment of conception "unborn children are constitutional persons entitled to equal protection of the laws".   If there is ever to be a decision that will disrupt the fabric of the law Finnis and George have provided the opportunity.

If Barrett wants to stop short of such a decision she will find the going rough.  She will have to confront her benchmate Neil Gorsuch whose doctoral dissertation at Oxford was supervised by Finnis.  His and George's view are doubtless shared by others at Notre Dame and by the U.S. Catholic Bishops who are likely to soon vote to ex-communicate Joe Biden, Nancy Pelosi and other "pro-abortion" Democrats.  That as Catholics Biden (father of three) and Pelosi (mother of six) personally oppose abortion makes their advocacy of freedom of choice more scandalous in the conservative view.  

It is going to be very difficult for Barrett to walk down the aisle on Sundays to receive communion if she does not herself embrace the anti-abortion view which U.S. bishops have declared to be the pre-eminent moral issue of our time.  She said at confirmation that she will not allow her religious beliefs to interfere with her adherence to the law itself.  Although the court has been friendly to anti-abortion protesters and the conservative Catholic justices personal orthodoxy is beyond doubt Roe v Wade has withstood assaults for forty eight years.   

`Compromises' such as letting stand the Texas six week rule, or the Mississippi fifteen week rule, or simply throwing up their hands and leaving it with the states  are unlikely to satisfy the peer groups that matter most to Barrett: the People of Praise (to whom she is a "handmaid"), her Notre Dame colleagues, the Bishops who will meet in mid-November, and perhaps her own parishioners and family.

-  GWC