Republicans are closer than ever to achieving a U.S. Supreme Court majority to overturn the landmark Roe v. Wade abortion-rights ruling, but getting there carries a hidden risk for the party.
A nominee who appears ready to cast the decisive vote against Roe could rally the majority of Americans who back legal abortion to turn out for Democrats in the November election, where Republicans are trying to keep control of the House and Senate.
“Now they’re the dog that caught the car,” said Joshua Wilson, a political scientist at the University of Denver and author of the 2016 book “The New States of Abortion Politics.” “Here’s the opportunity to do the thing that anti-abortion advocates have wanted to do for decades. And it’s really risky because their base really wants this but the majority of Americans don’t. So this could really mobilize Democratic voters.”
President Donald Trump said Friday he’ll announce his nominee to replace retiring Justice Anthony Kennedy on July 9.
For three decades, Republicans have successfully used the abortion issue to mobilize the religious right, whose support proved critical in Trump’s 2016 election. The president — who in 2016 promised to pick justices who would overturn Roe — has a historic opportunity to alter the court’s ideological balance with a more conservative nominee. But Trump may keep in mind where broader public opinion lies, ahead of an election where a surge of voter enthusiasm among women is endangering his party’s grip on Congress.
Views on abortion have been steady over the last four decades. Americans have mixed views but few want it to be outlawed. A May 2018 Gallup poll found that 18 percent want abortion to be illegal in all circumstances, while 50 percent want it to be legal in some circumstances and 29 percent say it should be legal in all circumstances.
A poll released Friday by the nonpartisan Kaiser Family Foundation tackled the question of Roe more pointedly in the context of the Supreme Court battle. Just 29 percent of Americans said they want to see Roe overturned, while 67 percent said they would not, including 81 percent of Democrats, 73 percent of independents and 43 percent of Republicans. A Quinnipiac poll out Monday found that Americans agree with Roe v. Wade by a margin of 63 percent to 31 percent.
The president told reporters Friday that when he interviews potential nominees he won’t ask about Roe. “They are generally conservative,” he said. “I’m not going to ask them that question, by the way.”
White House legislative director Marc Short and Senate Majority Leader Mitch McConnell, a Kentucky Republican, said they hope to confirm a new justice in time for the Supreme Court’s next session, which begins on the first Monday of October.
Certain to ask
If Trump nominates someone whose views on abortion aren’t publicly known, senators are certain to ask, even though Supreme Court nominees are coached to avoid answering how they would rule.
“It all comes down to abortion and Roe v. Wade. And it’s ridiculous but that’s the way it is,” said Sen. Orrin Hatch, a Utah Republican and former Judiciary Committee chairman. “I would like to see it overturned but I’ve always been that way. I think it’s one of the worst decisions ever made by the court.”
Republicans have a 51-49 majority in the Senate, which will decide whether to confirm the president’s nominee. Republican John McCain of Arizona is absent as he fights brain cancer. Several Democrats have supported restrictions on abortion, while several Republicans have said they support Roe.
A nominee who has displayed hostility to abortion rights could alienate pro-abortion-rights Republican senators such as Maine’s Susan Collins and Alaska’s Lisa Murkowski. The two have been open to supporting conservative nominees thought to have anti-abortion leanings if they convey a respect for Supreme Court precedent.
No ‘litmus test’
“I would not support a nominee who demonstrated hostility to Roe v. Wade, because that would mean to me that their judicial philosophy did not include a respect for established decisions,” Collins told CNN’s Jake Tapper on “State of the Union” on Sunday. She didn’t rule out backing a candidate believed to have anti-abortion views.
GOP Sen. Shelley Moore Capito of West Virginia has previously backed Roe. An aide told a West Virginia newspaper in 2014 that she “would not vote to overturn Roe,” though Capito declined to say if she continued to support Roe when asked last week.
In the Nov. 6 midterm election, every House seat and a third of the Senate will be up for grabs.
“The last time reproductive rights advocates were really able to hit this note of ‘Roe is at risk’ was after Casey and with the election of Bill Clinton,” said Wilson, referring to the 1992 ruling that reaffirmed Roe. The same could happen again when the court takes up a case involving abortion, he said.
Some Republican senators publicly support overturning Roe.
“I’m pro-life, so I think that’s a good goal to have when you’re pro-life,” Iowa’s Joni Ernst said in an interview. Pat Toomey of Pennsylvania said Roe is “really bad jurisprudence” and “a clear example of a court that’s imposing its policy views and just making it up out of whole cloth.”
Other Republicans are less comfortable with the issue. Nebraska’s Deb Fischer and Arizona’s Jeff Flake declined to say if they’d like to see Roe overturned.
“I want to see a nominee who will interpret the law and not legislate from the bench,” Flake said.
Democrats are sounding the alarm. “Roe v. Wade will be overturned,” read the subject line of a fundraising email Thursday by Massachusetts Sen. Elizabeth Warren. At stake is “Roe v. Wade being overturned,” wrote Oregon’s Sen. Jeff Merkley in an email to supporters.
The second-ranking Senate Democrat, Dick Durbin of Illinois, said he’d “like to hear a commitment” that Trump’s nominee would respect the Roe precedent. California’s Kamala Harris said that’ll be pivotal in her vote. “I can’t vote for anyone who’s not going to uphold a woman’s right to choose,” she said in an interview. “It’s a fundamental right.”
Sen. Joe Manchin, a West Virginia Democrat who describes himself as “pro-life,” told WV MetroNews on Friday that a nominee openly seeking to undo Roe would raise “red flags for all Americans” and that Trump should “get a jurist basically looking at the law — Roe v. Wade has been the law for 40-some years.”
Manchin is among three Democrats who voted for Trump’s first Supreme Court pick, Justice Neil Gorsuch, in 2017. He joined the other two, North Dakota’s Heidi Heitkamp and Indiana’s Joe Donnelly, at a meeting with Trump on Thursday night where the court was discussed, according to several people who attended.
Abortion is one of several issues, including legalized same-sex marriage and affirmative action, where Kennedy has sided with the court’s liberals.
Carrie Severino, a conservative legal advocate with the Judicial Crisis Network, said her group plans seven-figure spending on ads to help confirm Trump’s nominee. She sought to play down the prospect of the Supreme Court overruling Roe, describing it as “scaremongering” and “pressure tactics the left is trying to use.”
“Most justices — including some of the conservative justices — we don’t actually know what their position on that is,” Severino said. “No one knows what Chief Justice John Roberts would do.”