WASHINGTON — Brett Kavanaugh’s bruising 2018 U.S. Supreme Court confirmation battle spotlighted Democrats’ fears of an ascendant conservative majority on the court that would restrict and eventually overturn legal abortion.

“Millions of Americans are … rightly fearful that Justice Kavanaugh will undermine Roe v. Wade,” charged freshman Sen. Kamala Harris, D-Calif., a member of the Senate Judiciary Committee and now the Democrat’s vice- presidential candidate, in an October 2018 statement lamenting the threat posed by the presence of a fifth conservative justice on the court.

But during the court’s latest term, when the new conservative majority finally had its first shot at upholding a state law restricting abortion, the statute was struck down, with Chief Justice John Roberts, a Catholic, casting the deciding vote. And this time, it was the pro-life community’s turn to vent its frustration with the Supreme Court, and its 5-4 decision in June Medical Services L.L.C. v. Russo, which overturned a Louisiana law requiring abortion doctors to have hospital admitting privileges.

Vice President Mike Pence called Roberts a “disappointment to conservatives.” And as pro-life lawmakers and scholars continue to assess the fallout, Sen. Josh Hawley, R-Mo., a member of the Senate Judiciary Committee, stepped forward to challenge the GOP’s process for vetting Supreme Court nominees, by proposing a litmus test that would confirm a nominee’s stand on Roe v. Wade before his or her nomination.

“I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided,” Hawley, a former law professor and clerk for Roberts, said in a July 26 interview with The Washington Post. “By explicitly acknowledged, I mean on the record and before they were nominated.”

Hawley’s test measures a nominee’s past acknowledgement of the problems with Roe v. Wade but does nothing to secure the justice’s future commitment to overturn the 1973 decision after confirmation. Pro-life legal scholars nevertheless raised questions about the ethical and practical implications of his plan.

“Emotionally, I agree with this, but intellectually I can’t support it,” Teresa Collett, a professor of law at the University of St. Thomas School of Law in St. Paul, Minnesota, told the Register. “A justice should rely on the facts before them and the text of the law at issue.”

“To pre-commit to a particular outcome without knowing the facts of the actual case that will come before them or the text of the law at issue is to either make commitments you can’t keep or make commitments that disregard the facts of the law in question,” she said.

 

When President Donald Trump campaigned for president in 2016, he made the appointment of pro-life judges to the Supreme Court and federal bench a centerpiece of his message to the Republican base. In addition, conservative legal scholars and activists who have worked with Trump and past Republican presidents on this issue have focused on identifying highly qualified jurists who decide constitutional questions based on the Framer’s original intent and on the text of the law in question.

In practice, most are pro-life, but the Federalist Society and other organizations that have identified and vetted prospective nominees have never imposed an explicit litmus test.

 

Previous Nominees

The refusal to impose such a test is partly due to the fallout from Judge Robert Bork’s failure to win confirmation as President Ronald Reagan’s Supreme Court nominee in 1987, for some political analysts a critical turning point in U.S. politics. Bork had penned a long paper trail of writings critical of Roe v. Wade and the right to privacy that undergirded that landmark decision, and he spelled out his views during a combative Senate hearing.

Decades later, Bork said he may have “made a mistake to be as open as I was, but I thought it would be hard not to be open since I had written on the precise topics I was asked about. Nominees can no longer write on controversial topics, because the object today is for them to present as small a target as possible.”

Carrie Severino, president of the Judicial Crisis Network and a seasoned veteran of Supreme Court confirmation fights, raised several related points in an interview with the Register that attacked Hawley’s proposal as unworkable in practice.

Severino worried that the imposition of a litmus test would likely render GOP Supreme Court nominees “unconfirmable,” as Republican senators in solidly Democratic or swing states have been punished by voters for supporting jurists perceived as hostile to Roe. A nominee’s explicit commitment to overturn that landmark decision would make it impossible for someone like Sen. Susan Collins, R-Maine, to vote for them, said Severino, who noted that the Maine Republican “has voted for many nominees whose judicial philosophy would conclude that Roe v. Wade was wrongly decided.”

Back in October 2018, it was Collins, a supporter of legalized abortion, who stood on the Senate floor to deliver a powerful 45-minute defense of her decision to support Kavanaugh after he was accused by psychology professor Christine Blasey Ford of sexually assaulting her when the two were in high school.

During that speech, Collins also expressed her belief that Kavanaugh respected legal precedent and would not vote to overturn Roe. In fact, Kavanaugh would later rule in favor of Louisiana’s abortion law in the high court’s latest term.

Further, Severino contended that Hawley’s proposal ignored the fact that justices have changed their views on abortion as legal precedent, shifting to a more liberal or conservative position during the course of their tenure.

When Clarence Thomas was nominated by President George H.W. Bush to the high court, he acknowledged that he had neither written nor thought a great deal about Roe v. Wade, said Severino, who clerked for the justice. His views on Roe changed after his confirmation, and over the past 28 years he has filed a series of blistering dissents on the majority opinion in key abortion cases.

 

Revisiting Roe

But if most of these legal experts are not prepared to adopt Hawley’s test, they agree with his stated conviction that Roe “marks the point the modern Supreme Court said, ‘You know, we don’t have to follow the Constitution. We won’t even pretend to try.’”

Gerard Bradley, a professor at the University of Notre Dame’s School of Law, told the Register that “there is no more important constitutional question, and no more urgent matter of justice, in our day than the equal protection of the laws against homicide for every person, born or unborn.”

“It is as important as slavery was in the 18th century,” said Bradley.

Further complicating matters is the fact that both Roberts’ emerging role as the court’s new “swing vote,” and Hawley’s litmus test, have surfaced during a high-stakes election year.

President Trump hopes to score points with his Republican base for appointing jurists to the Supreme Court and the federal bench who are committed to the Founders’ understanding of judicial interpretation. But Hawley’s impatience with the unpredictable outcome of this strategy has resonated with some pro-life activists, ratcheting up the pressure on the White House and its legal allies to defend a legacy that dates back to Reagan.

“Before President Reagan, Republican presidents picked judges based on arm-twisting by senators, political trading, and other non-judicial criteria,” Leonard Leo, a conservative legal movement leader who has advised the last three Republican administrations on judicial selection, told the Register. “What you are seeing now is Trump taking up that mantle and running with it. It is not about ‘outcomes.’ It is a jurisprudential outlook.”

One concrete sign of the progress that has already been made with this approach, added Leo, is that “Casey v. Planned Parenthood (1992), among the most important abortion cases in our era, consisted of a five-person Republican majority. In June Medical, there is only one Republican in that majority.” 

Pro-life lawmakers “calling for litmus tests, should take stock of where we are. It may not be where we want to be but it’s not fair to say that progress has not been made,” said Leo.

The Register reached out to Senator Hawley’s office for further comment, but did not hear back by press time.

 

Pro-Life Perspectives

Legal scholars understand that many pro-life activists in the trenches may see things very differently.

“The people who have tremendous insight into the reality of abortion, but do not work in the legal system, like those operating crisis pregnancy centers,” said Collett, “may feel differently because the horror is so present to them.”

Indeed, Kathleen Eaton Bravo, founder and CEO of Obria Medical Clinics, which offer an alternative to Planned Parenthood and don’t provide abortion and contraception, is among those who support an abortion litmus test for judicial nominees.

“President Trump was open about his desire to nominate pro-life judges and all of us who offer women abortion alternatives rejoiced in that,” Bravo told the Register. “Should a pro-life president impose such a litmus test? Yes. I would love to see that happen.”

But if pro-life Americans feel whipsawed by a Republican-appointed chief justice siding with the liberal wing in June Medical, progressive Democrats fear that the margin of victory for cases dealing with hot-button issues like abortion or immigration remains dangerously thin, with five justices having been appointed by Republican presidents, and four by Democratic presidents.

Democrats will be making the court’s conservative tilt a key issue in campaign ads blanketing battleground states like Arizona, Michigan, North Carolina, Pennsylvania and Wisconsin. And some party leaders have floated a controversial proposal to dilute the power of the high court’s conservative wing by increasing the number of Supreme Court seats — a move known as “packing the court.”

Biden has said he opposes this approach, but Harris, his running mate, signaled that she was open to it during her failed presidential bid, and the party’s draft 2020 platform includes language that calls for unspecified “structural court reforms” to mitigate the Republicans’ impact on the courts.

 

Taking the Long View

And as the Democrats register their worries about the Supreme Court’s composition and likely threat to Roe, conservative leaders who have helped Trump execute his mission for the courts are asking pro-life Americans to take the long view and celebrate what has been gained and stay the course.

“We just saw a Supreme Court term with 7-2 religious freedom majorities,” said Leo, in a reference to the court’s July 8 vote in Our Lady of Guadalupe School v Morrissey-Barry. and 2019 vote in The American Legion v. American Humanist Association.

“We haven’t seen this run of religious freedom wins in the history of the modern court,” said Leo. “Show me a conservative who would trade today’s Supreme Court with a court populated by [Justices] Souter, Kennedy, and O’Connor.”

Joan Frawley Desmond is the Register’s senior editor.