U.S. Senate’s Pro-Life Majority Faces Big Test in November
The Senate has a bipartisan pro-life majority, but a number of key Senate races could determine whether it will hold after Nov. 8.
Editor's Note: This story was first posted on Oct. 7. It is in our Oct. 16 print edition.
WASHINGTON — The upcoming elections in November could decide whether the Senate remains in the hands of a bipartisan pro-life majority and have serious ramifications for the agendas of the major candidates, Hillary Clinton or Donald Trump.
Although Republicans outnumber Democrats in the U.S. Senate 54 to 45, the Senate’s pro-life majority actually hinges on a coalition of 51 pro-life Republicans and two pro-life Democrats.
Just losing three pro-life seats would split the chamber evenly between lawmakers opposed or sympathetic to legal abortion, even if the GOP retains actual control of the chamber, leaving the deciding vote on pro-life agenda items to the next vice president, likely Republican Mike Pence or Democrat Tim Kaine.
In the Oct. 4 vice-presidential debate, Pence articulated a strong pro-life position, whereas Kaine, a Catholic who has a long record of political support for abortion rights, confirmed that stance.
Carol Tobias, president of National Right to Life Committee (NRLC), told the Register that the Senate election is “critical” for the pro-life agenda in 2016, more than in other years, given the possibility that Hillary Clinton might become president.
“She will be the most pro-abortion president we’ve ever had,” Tobias said. The NRLC leader pointed out Clinton’s close ties with Planned Parenthood, the nation’s largest abortion provider, and her commitment to overturn the Hyde Amendment, an annual Health and Human Services’ appropriations rider that blocks federal funding for elective abortions.
Other pro-life legislation agenda items, such as the ban on dismemberment abortion, the pain-capable abortion ban and legislation that would make the Hyde Amendment permanent and defund Planned Parenthood, would also be highly unlikely in a Clinton administration, according to Tobias. NRLC believes that a Trump administration will push these agenda items into law if they are passed in the House and Senate.
However, a Senate with a majority committed to legal abortion, Tobias indicated, would try to advance not only Clinton’s domestic abortion agenda, through legislation and judicial picks, but also international treaties promoting abortion.
“We need as many pro-life senators in the Senate as possible to stop her in any way that we can,” Tobias said of a possible Clinton administration.
Pro-life groups are paying attention to key close Senate races in Florida, North Carolina, Indiana, Ohio, New Hampshire, Pennsylvania, Missouri and Nevada.
“It’s all about protecting the pro-life majority that we do have,” Mallory Quigley, a spokeswoman for Susan B. Anthony List, a pro-life political action group, told the Register.
Cross-party appeals are part of the strategy that organizations such as Susan B. Anthony List are using to help protect the Senate’s pro-life majority. Quigley said the organization has made targeting the one-third of Democrats who are like-minded voters and Hispanic voters part of its ground game in both Florida and North Carolina. She said many of these voters are “really horrified” when they learn about Clinton’s comments calling for public funding of abortion for low-income women.
“These positions are just wildly unpopular,” Quigley said.
The polls show that the Senate races in Florida, Ohio and Iowa now look more favorable for incumbent pro-life candidates against abortion-rights challengers.
Two particularly tight races, Quigley said, are North Carolina, where Republican Sen. Richard Burr faces legal abortion supporter and Democrat Deborah Ross, and Pennsylvania, where Republican Sen. Pat Toomey has faced a barrage of Planned Parenthood attacks supporting his Democratic challenger, Katie McGuinty.
In Nevada, pro-life groups are looking to see whether Republican Joe Heck will succeed Democratic incumbent Harry Reid, the retiring Senate minority leader. He faces Catherine Cortez Masto, a Democrat whose support for legal abortion has won her the endorsement of Emily’s List, a political action committee dedicated to helping elect pro-abortion-rights Democratic female candidates.
Louisiana: Pro-Life Choices
Louisiana’s Senate seat is expected to remain in pro-life hands, despite the retirement of Republican Sen. David Vitter, as the top four Republican and Democrats running have all espoused pro-life positions.
According to a Sept. 21 poll, the top four front-runners are two Republicans, State Treasurer John Kennedy (17%) and U.S. Rep. Charles Boustany (15%), followed by two Democrats, Caroline Fayard (11%) and Foster Campbell (9%).
Pro-life Democrats are hoping to increase their numbers in the Senate, so long as one of their candidates can make at least second place on Nov. 8. Louisiana has a “jungle primary” that allows multiple candidates from either party to compete, with the top two vote-getters going to a run-off election if no one breaks the 50% threshold.
But the Democratic votes are split between Fayard, a New Orleans lawyer, and Campbell, the public service commissioner. Campbell has the support of pro-life Democratic Gov. John Bel Edwards, while Fayard has the endorsement of the national Democrats for Life.
Both candidates have similar positions on advancing paid family leave, pay equity between women and men and fighting domestic violence, while Fayard has made fighting sexual assault on college campuses a part of her agenda.
Pro-life control of the U.S. Senate affects four key areas — legislation, judicial appointments, presidential administrative appointments and treaties — according to O. Carter Snead, director of the Center for Ethics and Culture at the University of Notre Dame.
“Control of the Senate is absolutely essential to protecting the unborn child and building a culture of life, regardless of who is president,” Snead, who also teaches law and political science at Notre Dame, told the Register.
Retaining a pro-life majority in the Senate would provide either an important check for a president who wants to advance an abortion-minded legislative agenda, explained Snead, or help advance a president’s pro-life agenda. He said the “worst-case scenario” would be for the Senate and the presidency to align behind “a legislative program supporting abortion and embryo-destructive research.”
“Another key area for the Senate is confirming or rejecting the federal judges on the lower courts, who adjudicate 99% of all federal cases,” explained Snead. However, the next Senate will have to replace the vacant seat of Supreme Court Justice Antonin Scalia, and possibly more.
Trump has twice pledged to choose pro-life jurists for the high court, releasing a list of 11 potential picks in May, followed by 10 more in September.
In theory, Snead said, the Senate could either end up selecting a jurist who agrees with Scalia — that the Constitution does not include a right to abortion — or could entrench U.S. Supreme Court jurisprudence that prohibits the states and federal government from protecting the unborn child from the violence of abortion.
The Senate will also have to confirm appointees to the federal government, most notably the next president’s cabinet.
“Recall that the federal mandate requiring religious employers such as the Little Sisters of the Poor to facilitate access to contraceptives and potentially embryo-destructive drugs was entirely a creature of the Departments of Health and Human Services, Treasury and Labor — the heads of which are all subject to Senate confirmation,” Snead said.
Abortion Agendas Unlikely
However, Matthew Green, a political science professor at The Catholic University of America in Washington, cautioned that no legislative abortion-related agendas by either Clinton or Trump are likely to get far under the current rules of the Senate.
Green pointed out that if Trump wins, and the GOP retains control of the Senate and a majority of senators are pro-life, that would still not be enough to enact the legislative wish-list of pro-life groups. They would still not have the minimum 60 votes needed to shut down a filibuster and push their legislation through.
Clinton would have a similar obstacle, because even if the GOP loses control of the Senate to the Democrats, the Senate will likely have more than 40 pro-life senators who can block abortion-minded legislation. Green said he was “exceedingly skeptical” that Clinton could eliminate the Hyde Amendment under those conditions, particularly since a majority of the public supports it.
The other issue for a pro-life agenda under Trump, Green pointed out, is that abortion is not a key priority of his campaign, whereas immigration and trade are the issues he constantly brings forward.
While his potential vice-president, Gov. Pence, has demonstrated sincere commitment to the pro-life cause throughout his career, when it comes to getting through such contentious legislation as abortion, Green said, “You really need the stature of the president behind it.”
The Supreme Court scene is somewhat different, Green added. Trump has pledged twice to nominate pro-life justices to the high court, and Green said there is no indication that Trump would do otherwise. However, he said that Trump is “so unpredictable he could do anything,” and voters will have to see whether Trump the candidate will follow through as Trump the president.
When it comes to Clinton’s nominees, Green said a GOP-controlled Senate would likely force Clinton to put forward a compromise candidate. But a Democratic-controlled Senate, he added, would likely change the filibuster rules in order to bypass the objections of the pro-life minority to her nominees and confirm justices aligned with Clinton’s progressive views, particularly on abortion, with just a simple majority.
For pro-life activists like NRLC’s Tobias, the pivotal concern in this election is that the next few judicial appointments could either solidify Roe v. Wade’s abortion jurisprudence for decades or finally bring about a majority that would return abortion law back to the states.
She said, “There’s just so many national consequences riding on this election.”
Peter Jesserer Smith is a Register staff reporter.