Judge Amy Coney Barrett’s confirmation battle has raised the national debate over abortion rights to a level not seen in years.
President Trump’s nominee has indicated skepticism of Roe v. Wade at a time when the Supreme Court is poised to review multiple challenges to the landmark case.
The first substantive question Sen. Dianne Feinstein (Calif.), the ranking Democrat on the Judiciary Committee, asked the nominee Tuesday was whether she agreed with her former mentor, late Justice Antonin Scalia, that Roe v. Wade was “wrongly decided” and “can and should be overruled.”
Barrett declined to state her view, citing Justice Elena Kagan’s refusal to “grade precedent” during her 2010 confirmation hearing.
She explained that the precedent set by Roe v. Wade in 1973 and affirmed by Planned Parenthood v. Casey in 1992 “continues to be pressed and litigated” and that it would be “wrong” and a “violation of the canons” for her to express views of precedents.
Seventeen different abortion-related cases are being heard at the appellate court level, putting them one step away from review before the Supreme Court.
Celinda Lake, a Democratic pollster, said “health care and choice” are two of the most potent issues for Democrats coming out of the Supreme Court confirmation fight.
“For certain audiences like college-educated women, it’s good to link Roe v. Wade and the [Affordable Care Act] because it covers birth control and it covers women’s reproductive health care. So there’s good linkage there particularly for college-educated women and for millennial women,” she said.
Lake said the issue is becoming more of a weapon for Democrats because many women voters in swing states in 2016 were skeptical that Trump truly opposed abortion rights.
“It’s a top issue when people think it’s at risk,” she said.
Sen. Amy Klobuchar (D-Minn.), the next woman on the Judiciary panel to question Barrett on Tuesday, pressed the nominee about her name appearing on a public statement printed in a newspaper ad calling for an end to “the barbaric legacy of Roe v. Wade.”
When Klobuchar asked whether she would define Roe v. Wade as a superprecedent, Barrett responded that “Roe doesn’t fall in that category,” which she reserved for rulings “that are so widely established and agreed upon by everyone [that] calls for its overruling simply don’t exist.”
While Barrett declined to express her views of those decisions in the Senate hearing room, she has given enough hints about them to satisfy conservatives such as Sen. Josh Hawley (R-Mo.), a member of the Judiciary Committee, who has insisted that Trump nominate a judge with a public record of skepticism toward Roe v. Wade.
One of Barrett’s biggest tells came in a 2003 journal article while at Notre Dame Law School in which she suggested that Roe v. Wade was an “erroneous decision” that justices decided not to overrule in Planned Parenthood v. Casey because Americans had come to rely on it.
She dropped another in 2018 when she joined fellow 7th Circuit Judge Frank Easterbrook in disagreeing with a decision by the full appellate court not to review a decision striking down an Indiana law restricting abortion on the basis of a fetus’s disability or sex.
Barrett, however, insisted Tuesday that she would not come to the Supreme Court with any “agenda.”
“I have no agenda to try and overrule Casey. I have an agenda to stick to the rule of law and decide cases as they come,” she said.
Abortion rights was a hot political topic in the 1990s and the years after the high court established the right to abortion in Roe v. Wade, but it faded somewhat in recent years as battles over the Iraq War, the Affordable Care Act, tax cuts and now the coronavirus pandemic attracted attention.
But abortion rights are now gaining momentum as a significant factor in the 2020 election as conservatives on the Supreme Court are poised to gain a decisive 6-3 majority.
Conservatives including Hawley and Sen. Tom Cotton (R-Ark.), who are both rising stars and potential White House candidates in 2024, have become more outspoken in calling for an end to Roe v. Wade.
Cotton tweeted on Sept. 9, “It’s time for Roe v. Wade to go,” a bolder pronouncement than most of his Senate GOP colleagues are willing to make.
The Democratic National Committee immediately pounced on Barrett’s refusal to state her views.
“We already know that Barrett would roll back the clock on reproductive rights because she has made clear she opposes reproductive choice and has expressed hostility towards Roe v. Wade,” the committee said in a statement.
Sen. Mike Lee (R-Utah) argued at the hearing that Democrats are overhyping the threat to abortion rights.
“From watching debates in circumstances like this one and in protests outside the Supreme Court of the United States, you’d have the impression that if Roe v. Wade didn’t exist, that all of a sudden abortion would immediately become illegal in every state,” he said. “That assumes a lot of things contrary to evidence.”
He said it’s “simply not the case” the “availability of an abortion or lack thereof is contingent on anyone’s confirmation to the Supreme Court.”
It’s a line of defense that other Republicans are using.
During her first debate against Democratic challenger Theresa Greenfield, Sen. Joni Ernst (R-Iowa), a vulnerable incumbent, said “the likelihood of Roe v. Wade being overturned is very minimal.”
“I don’t see that happening,” she said.
Lawmakers and political experts say restriction on abortion rights is less likely to come from a complete overturning of Roe v. Wade in one case than a series of cases that chip away at it.
“At the forefront of the concern of the Democrats is that Roe v. Wade will be if not outright overruled, will be significantly cut back. And I suspect the way it will be done is by a death by a thousand cuts rather than by a simple beheading,” said Ross K. Baker, a professor of political science at Rutgers University and a former Senate fellow.
Abortion rights are especially critical as an issue with high visibility among suburban women, whom Senate Majority Leader Mitch McConnell (R-Ky.) identified last year as a crucial electoral bloc in 2020.
A Pew Research poll from 2019 found that 79 percent of women who graduated from college oppose overturning Roe v. Wade, and that 74 percent of independent women and 74 percent of suburban women also oppose doing so.
More recent polling in Georgia, a Senate and presidential battleground, found similar numbers among female voters. Polling conducted by Change Research and released by NARAL Pro-Choice America found that 65 percent of suburban women in Georgia oppose that state’s 2019 law banning abortion after six weeks of pregnancy.
A challenge to the Georgia law is pending before the 11th Circuit Court of Appeals.
Yet abortion is a charged issue that cuts both ways. While it’s a potential liability for Republican candidates among suburban women, it’s also a potential problem for Democratic candidates running in conservative-leaning states or courting Catholic swing voters.
Senate Minority Leader Charles Schumer (D-N.Y.) has tried over the past three weeks to put his party’s focus first and foremost on the threat Barrett, if confirmed to the court, would pose to the 2010 Affordable Care Act, on which justices are scheduled to hear oral arguments the week after the Nov. 3 election.
Baker said Democrats don’t want to make abortion rights “the sole issue or even the principal issue because it leaves Democrats open to a charge that Republicans are already using on them, which is this is all about religion.”
“With Roe v. Wade it really becomes about the religious outlook of the nominee,” he said.
He said abortion rights is a good issue for Democrats, but they “don’t want to belabor it.”
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