Washington • Abortion rights is emerging as a litmus test for the next Supreme Court nominee, with Democrats and at least one moderate Republican declaring they wouldn’t support a nominee who opposes the landmark Roe v. Wade ruling that established a woman’s right to abortion.
But there’s less here than meets the eye. Here’s why:
Spin from the Left
Senate Minority Leader Chuck Schumer declared Monday that abortion rights are hanging in the balance. In an op-ed in The New York Times, Schumer said “the next nominee will obfuscate and hide behind the shopworn judicial dodge, ‘I will follow settled law.’”
But law “is only settled until a majority of the Supreme Court decides it is not,” he noted.
What Schumer doesn’t mention is a point evangelical leaders have made in recent days: A ruling overturning Roe v. Wade wouldn’t immediately end abortions, but rather kick the issue to the states.
And while several Republican-led states have passed aggressive regulations and would likely be emboldened by a more conservative court, there’s no guarantee how the future Supreme Court will rule.
Spin from the Right
Trump says he will “probably not” ask potential nominees their thoughts on Roe v. Wade. But he wouldn’t necessarily have to.
Leonard Leo of the Federalist Society is advising Trump on a nomination, and is expected to seek out an “originalist and textualist” much like Justice Antonin Scalia, who died in 2016. That judicial approach typically involves a more literal interpretation of the Constitution, and not reading into the Constitution language that doesn’t explicitly appear. Roe, for instance, relied on a right to privacy, which is not explicitly mentioned in the Constitution.
That tact can go a long way to find a justice who would rule against abortion rights without triggering widespread opposition.
But that too isn’t guarantee that a future justice would side with conservatives. One good example is retiring Justice Anthony Kennedy, who was appointed by President Ronald Reagan and voted in favor of abortion rights.
How it could play out
All eyes are on Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, moderate Republicans who support access to abortion services and aren’t up for re-election, making it less likely either will feel pressure to be in lockstep with the polarizing president.
Collins made headlines this weekend when she told CNN she wouldn’t support a nominee who “demonstrated hostility” toward Roe v. Wade.
But it’s unlikely that any candidate would openly declare hostility to a past court ruling. In fact, in 2017, Neil Gorsuch — Trump’s first Supreme Court pick who now sits on the court — said he would have “walked out the door” had Trump asked him to overturn Roe v. Wade because “that’s not what judges do.”
Collins and even several Democrats agreed to back Gorsuch because they said he clearly valued legal precedent and the independence of U.S. courts. It’s likely the next nominee will sidestep the matter in a similar way.
But what if?
It is possible that Trump’s nominee will prove more divisive than Gorsuch. And with the Senate’s 51-49 split, the final vote could still be a nail biter.
If Collins and Murkowski vote “no” and Democrats all vote “no,” the nomination would be blocked.
If Sen. John McCain’s aggressive brain cancer diagnosis keeps him from traveling, it would only take one GOP defection to potentially block the nomination. (McCain isn’t afraid to buck his own party, but he is mostly in line with his party in opposing abortion rights).
If there is a danger of losing Republican votes, the nominee could prevail by courting Democratic senators seeking re-election this year in states Trump carried in 2016, including Sens. Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia and Joe Donnelly of Indiana. All three voted to confirm Gorsuch.
Manchin has already warned the White House against an overtly anti-abortion nominee.
“I’m pro-life but I know how that divides our country immediately and divides everyone, they’re split right down the middle on that,” Manchin told a West Virginia radio station . “If he picks someone who is hardcore on Roe v. Wade or hardcore on repealing health care that’s a bigger lift.”