Translating Three Dangerous Signals That Barrett Sent Yesterday

Although Judge Barrett repeatedly attempted to punt questions about her judicial record and philosophy, the answers she did provide illuminate the dangerous positions she would take on the Supreme Court. On several occasions, she used words and phrases to paint herself as a neutral arbiter of justice. But these phrases are actually signals that Barrett’s viewpoints would be incredibly harmful to people of color, LGBTQ people, and other communities that have historically faced—and continue to face—oppression in this country.

To translate, here are three dangerous signals Barrett sent out with her words yesterday:

What Judge Barrett Said What It Actually Means
“Eugenics” Ban. Barrett referred to what she called the “eugenics portion” of an Indiana abortion ban that was struck down by the Seventh Circuit Court of Appeals. In using “eugenics language, Barrett was repeating language used in a dissent she signed onto in 2018. That dissent went out of its way to voice support for Indiana’s unconstitutional abortion ban. The law in question prohibited abortions based on certain reasons for people seeking them, including abortions that are supposedly based on the race or sex of the fetus.
Barrett would uphold bans on abortion that rely on and perpetuate racist stereotypes while actively harming communities of color.

Barrett is echoing anti-abortion politicians who dress racist policies up in anti-racist language.

These laws rely on stereotypes that certain communities (often Asian communities) prefer to have male children to justify so called “sex selection bans,” despite an utter lack of evidence that such selection is occurring.

Similarly, “race selection bans” rely on arguments that women of color are coerced into abortions or are complicit in a ‘genocide’ against their own community, again despite total lack of evidence. These laws exploit legitimate fear in Black communities of a medical system that has historically failed and exploited Black bodies and do nothing to combat the ongoing effects of inequalities in access to vital medical services, including abortion care.

In reality, people of color are disproportionately harmed by abortion restrictions and other barriers to health care. And Judge Barrett has made very clear that she will uphold more extreme abortion restrictions if she is confirmed to the Supreme Court.

Her approach in this case – and her use of “eugenics” language to justify banning abortion – puts her alongside Justice Thomas. When this case reached the Supreme Court, Justice Thomas said that the dissent signed by Judge Barrett “was correct” and adopted the extreme “eugenics” rhetoric throughout his lengthy, fervent 20-page concurrence. Justice Thomas does not believe in the right to abortion.

Sexual preference. Yesterday Judge Barrett stated that she has “never discriminated on the basis of sexual preference and would never discriminate on the basis of sexual preference.” Barrett would rule in ways that deny the experiences of LGBTQ people.

Barrett and others who use the language of “sexual preference” diminish the lived reality of LGBTQ families who have fought to be recognized as equals in the eyes of the law. It is not a question of “preference” that can be changed but rather an inherent right to live without discrimination on the basis of sexual identity. Phrases like “sexual preference” have been used by the religious right to reject the validity of LGBTQ identities. This harmful rhetoric was later pointed out to her, and she apologized. But her apology is not enough.

Barrett has time and time again expressed her hostility towards LGBTQ+ rights; for example, in a 2016 lecture Barrett misgendered transgender students, repeatedly referring to them as “physiological males,” and echoed transphobic talking points, stating, “People will feel passionately on either side about whether physiological males who identify as females should be permitted in bathrooms especially where there are young girls present.”

Originalism. Throughout the hearings, Judge Barrett has claimed that like Judge Scalia, she is an originalist when it comes to interpreting the rights protected by the U.S. Constitution. Time and again Judge Barrett stated that she would interpret the Constitution’s text with the meaning “that it had at the time people ratified it.” As she said, “Justice Scalia was a mentor and . . . his philosophy [of originalism] is mine.” Barrett would rule in ways that prioritize the interests of white slaveholding and landholding men in 1791 over everyone else.

Many of those like Barrett who declare themselves adherents to “originalism” seek to restrict the Constitution to the interpretation of the viewpoint of the white, slave-owning men that wrote and ratified it in 1791. If the Court were to decide cases based on these viewpoints, many of the policies and laws we have fought to protect, like access to abortion care, gender and racial equity, and the political representation of all, regardless of identity, would not survive.