Vermont law professor says erosion of abortion rights likely if Trump nominee confirmed

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President Donald Trump’s nomination of Amy Coney Barrett for the Supreme Court has sparked concern that a clear conservative majority on the bench would pose a threat to reproductive rights and other protections.

Jared Carter, a professor at Vermont Law School, said it’s likely there will be a slow erosion in the protections of Roe v. Wade if Barrett is confirmed.

“There’s a principal that the Supreme Court applies called the principal of Starry Decisis, which means that cases that have come before should be respected,” Carter said. “There’s no secret that Judge Barrett on the 7th Circuit has been much more critical of Roe v. Wade, and in at least one dissent indicated states should have more flexibility to restrict the right to abortion under Roe v. Wade.”

Last year, the Vermont Legislature passed H.57, a bill created in anticipation of a conservative majority on the Supreme Court. It guarantees the right to abortion in Vermont. Governor Phil Scott later signed the legislation into law.

Carter said that if Barrett is confirmed, Vermont and other states could pass similar legislation in order to protect other rights that could eventually be subject to change under a conservative court.

“Whether it’s environmental regulations, whether it’s law enforcement, civil rights, it could very well open up the State of Vermont and other states to pass legislation, because I think Barrett is very likely to have a much more state’s rights judicial philosophy.”

Election day is five weeks away, and Vermont’s representatives in Washington have made their thoughts clear on Barrett’s nomination and the confirmation process ahead.

“Healing the nation should be our priority,” Senator Patrick Leahy said in a statement. “Instead, the president is tearing us further asunder with a sham process to push through a new justice to the highest court in the land.”

“President Trump and Senate Republicans have badly mismanaged a deadly pandemic for months,” Senator Bernie Sanders added. “Now, in the midst of an unprecedented public health crisis, they are willing to ram through a Supreme Court nominee—within days—who will vote to destroy the Affordable Care Act, kick millions of Americans off their health care, and eliminate protections for millions more who have preexisting conditions.”

Both Senators expressed concern for the future of the Affordable Care Act.

It’s clear that Barrett would approach her work on the bench much differently than Ginsburg, and Carter gave thoughts on that contrast.

“I think a Justice Barrett would in many ways look like a Justice Scalia,” Carter said. “Her judicial philosophy is one of originalism, textualism, in other ways looking at the language of the Constitution or a statute and being much less willing to read values or principles into that.”

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