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Researh Service
Fetal Viability and Judge Amy Coney Barrett
October 16, 2020
The Supreme Court nomination of Judge Amy Coney Barrett has prompted greater s c rutiny of her judicial
opinions, academic writing, and statements to discern how she might decide future cases if she were
confirmed to the High Court. With cases involving the Affordable Care Act, the First Amendment, and
civil rights on the Court's docket in its current term, Judge Barrett's views on these subjects are being
carefully reviewed. Commentators are also examining Judge Barrett's background and writing to try to
gauge her views on the Court's seminal 1973 abortion decision, Roe v. Mide. Although the Supreme
Court's docket does not include any cases involving abortion at the moment, the Court is considering
whether to review Dobbs i,. Jackson Jf)mens Health Oiganization. Dobbs implicates one of Roe's
essential holdings: that a state may not completely prohibit abortion before fetal viability, a point in
fetal development when a fetus is able to live outside of the mother's womb with or without artificial
assistance. Judge Barrett joined a dissenting opinion in a 2018 case involving an Indiana law that would
have restricted abortions based on fetal characteristics such as sex or a Down syndrome diagnosis. While
joining a judicial opinion authored by another judge does not necessarily reflect full agreement with the
underlying opinion, it may grant some insight into Judge Barrett's views. This Sidebar examines that
2018 dissent and discusses Dobbs as it awaits further consideration by the Court.
Since Roe, the Supreme Court has recognized viability as the earliest point at which a state's interest in
fetal life may allow for an outright prohibition on the performance of an abortion. The Roe Court
indicated that viability is usually placed at about seven months (28 weeks) but may occur earlier, even at
24 weeks. In its 1992 decision, Planned Patenthood ofgoutheastern Penisylvania v. Casey,, the Court
reaffirr'med] this aspect of Roe, holding that a woman has a right ... to choose to have an abortion
before viability and to obtain it without undue interference from the State. Aplurality of the Casey Court
also adopted the undue burden standard that is used to evaluate abortion regulations, such as parental
notification requirements, that may restrict but not prohibit the performance of pre-viability abortions.
During her tenure with the U.S. Court of Appeals for the Seventh Circuit, Judge Barrett has not authored
any opinions on abortion. However, in two abortion cases, Plamed Patenthood ofIndiana and Kenitucky
v. Box and Planned Parenthood of Indkina and Kentucky v. Coimmissionr of the indima State
Department of Health (Commissione), Judge Barrett joined dissenting opinions authored by two of the
court's other judges. Although the Box dis sent focused on a procedural matter, the Commissioner dis sent
did comment on the constitutionality of an abortion regulation at issue in the case. In Commissioner, a
federal district court in Indiana permanently enjoined three Indiana regulations: (1) restrictions on
Congressional Re search Service
https://crsreports.congress.gov
LSB10542
CRS Lega ~ iebar
Pre pa red .r Menbersand
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