In a September 23rd America magazine piece entitled “Electing Republicans has not reversed Roe v. Wade. It’s time to change our strategy” DePaul University professor William Cavanaugh claims pro-life advocates should abandon the goal of electing pro-life presidents. He says the strategy has not led to Roe being overturned and probably never will lead to that victory.
But Cavanaugh’s arguments for this position don’t hold up to scrutiny.
For example, he says that “Roe v. Wade was decided in a 7-to-2 vote by a court with a 6-to-3 Republican majority; five of the six Republican appointees voted to legalize abortion.” But this is like pointing out that it was seven Democratic justices who upheld Dred Scott v Sanford (which denied citizenship to black Americans) and that the only two Republicans on the Court dissented from the ruling. If Democrats can only be judged by their party’s current views on race, then the same should be allowed for the Republican Party’s views on abortion.
Of course, abortion had nothing to do with either the Democratic or the Republican parties in the middle of the twentieth century. The Republican presidents who nominated the justices that upheld Roe v Wade—Eisenhower and Nixon—were not elected because of their views on abortion. Abortion didn’t become a national campaign issue until 1972 and, although Nixon did campaign on an anti-abortion platform during his re-election bid, he didn’t nominate any justices during his second term.
But what about the 1992 Planned Parenthood v Casey decision? “By 1992,” Cavanaugh says, “pro-life presidents Reagan and George H.W. Bush had appointed five justices, giving the Republicans an 8-to-1 advantage . . . If ever Roe v. Wade was going to be overturned, this was the time.”
It’s true that some justices appointed by Republicans used Casey to uphold a general right to legal abortion. But they also upheld state-level restrictions on abortion that were not possible under Roe, such as mandatory waiting periods and parental consent laws. And Casey itself could have had a very different outcome if Robert Bork had been confirmed in 1987 instead of perpetual “swing voter” Anthony Kennedy.
Indeed, Cavanaugh asks why Republican-appointed justices failed to overturn Roe in the past fifty years and floats as a hypothetical answer that “Democrats have prevented the Republicans from putting the justices they want on the Supreme Court.” He then rejects this hypothesis with the following reasoning:
Over the last 50 years, the Democrats have succeeded in blocking only one Republican nominee, Robert Bork in 1987, and it was not because of his views on abortion. Toward the nominees not accused of sexual misconduct, Democrats have until recently offered little resistance, even to the most conservative justices; Antonin Scalia, for example, was approved by the Senate on a 98-0 vote.
This short paragraph is shot through with historical amnesia and tortuous reasoning.
First, Democrats (with then-Sen. Joe Biden presiding over the hearings) seized on a variety of issues in order to oppose Bork, one of which was abortion. Just minutes after Bork was nominated, Sen. Ted Kennedy declared, “Robert Bork’s America is a land in which women would be forced into back alley abortions.” This detail is even mentioned in the Vox article Cavanaugh cites in defense of his gaslighting claim that opposition to Bork was “not because of his views on abortion.”
During the subsequent nomination period of Clarence Thomas, a speaker at a National Organization for Women conference said, “We’re going to Bork him. We’re going to kill him politically—this little creep.” “Bork” even entered the Oxford English dictionary in 2002 as a verb meaning “to defame or vilify (a person) systematically, especially in the mass media, usually to prevent his or her appointment to public office.”
Cavanaugh is correct that Antonin Scalia received a unanimous vote, but he was replacing Rehnquist, who had dissented against Roe, so it was recognized that the Court’s composition was not going to change dramatically. Even still, during the confirmation hearings for Ruth Bader Ginsburg, still-Sen. Joe Biden said his vote for Scalia was “The vote I most regret casting out of the ones I ever cast.”
In order to prevent future nominees from being “Borked,” pro-life presidents resorted to nominating justices who lacked a “paper trail”—legal opinions or rulings that made it seem as if they might overturn Roe. This, understandably, necessitated the nomination of milquetoast judges who lacked evidence of firm adherence to legal philosophies that could lead to a decision against Roe. Senator Ted Cruz put it this way:
Neither Souter nor Roberts had said much of anything. They didn’t have a paper trail, they wouldn’t have a fight. Whereas if you actually nominate a conservative, then you gotta spend some political capital. Then you gotta fight.
In addition, Cavanaugh’s claim that Democrats offered “little resistance” to conservatives not accused of sexual misconduct is false: forty-two senators voted against Samuel Alito and forty-five voted against Neil Gorsuch. It’s also specious because one could plausibly argue that the Democrats saved their most insidious “Borking” tactic, unsubstantiated allegations of sexual misconduct, for conservative nominees slated to replace liberal judges.
This happened to Clarence Thomas, whose nomination (which he memorably called “a high-tech lynching”) was acrimonious—no doubt because he was going to replace Thurgood Marshall, a justice who had voted for Roe and even considered bans on federal funding for abortion to be unconstitutional (see his dissent in Harris v McRae). Likewise, when Brett Kavanagh was nominated to replace Anthony Kennedy, his contentious hearings prompted a rare display of outrage from normally reserved Sen. Lindsay Graham, who called the hearings “the most unethical sham” he’d ever seen.
So while Cavanaugh dismisses the theory that abortion is legal because the Democrats do everything they can to keep it legal, he endorses as “more plausible” the view that Republicans don’t really want Roe overturned, so that they can keep stringing along pro-life voters—including many Catholics who disagree with Republicans on other parts of their platform. Yet this reasoning makes no sense.
If Roe were overturned, Democrats would do everything in their power to reinstate it (whether by a future court case or a constitutional amendment). Pro-life Republicans would be able to rely on the votes of their pro-life constituents—to prevent a new Roe nationally and to enact legal prohibitions of abortion on the state level—just as Democrats have been able to rely on the continuing support of pro-abortion voters during the Roe era.
Cavanaugh also diminishes the importance of voting for a pro-life president because, he says, “There has been no significant difference in abortion rates under Republican and Democratic presidents. If anything, abortion rates have fallen slightly more rapidly under Democratic presidents.”
This is a prime example of correlation not equaling causation. Even left-leaning snopes.com says that “causation between the presidency and abortion rates would be difficult to demonstrate in any case because it is hard to draw a straight line between federal government policy (let alone presidential policy) and abortion procurement. Nearly all challenges to open access to abortion have come at the state, and not the federal, level.”
Moreover, sociologist Michael New has shown that state-level restrictions on abortion do reduce abortion rates, and as Richard Doerflinger noted his own reply to Cavanaugh,
Modest ‘incremental’ pro-life laws do reduce abortions. These have been upheld even by disappointing Republican nominees to the Supreme Court like Sandra Day O’Connor and Anthony Kennedy and opposed by justices nominated by Democratic presidents since Mr. Clinton—a trend that Joe Biden pledges to continue. Especially important are bans on the public funding of abortion.
Indeed, in 2019, Vice-President Biden reversed his long-standing support of the Hyde Amendment and pledged to allow federal funds to be used to pay for abortions.
Of course, this doesn’t mean that Republicans haven’t blundered when it comes to choosing Supreme Court nominees. The obvious example is Sandra Day O’Connor, whom Ronald Reagan nominated despite knowing about her sympathy to legal abortion. Reagan’s diary reveals that “the Gipper” may have simply had a misplaced optimism about O’Connor: “Right to Life people say she’s pro-abortion. She declares abortion is personally repugnant to her. I think she’ll make a good Justice.”
Cavanaugh also claims that pro-life justices may not overturn Roe because of stare decisis, or the legal principle that judges should avoid overturning previous rulings. I’ll give Cavanaugh one point here: good justices are a necessary condition for overturning Roe. But they probably aren’t a sufficient condition.
The reason I say this is because in recent years the Court has conspicuously overturned previous rulings only after a plurality or majority of the public rejected the essence of those rulings. What else can explain a Court that would uphold bans on same-sex marriage in 1971 (Baker v Nelson) and sodomy in 1986 (Bowers v Hardwick) only to reverse those decisions in 2015 (Obergefell v. Hodges) and 2003 (Lawrence v Texas)?
This means that pro-life advocates should not view the Supreme Court as a magical institution that will end abortion tomorrow once the right justices are confirmed. But neither should they cynically reject the Court’s value just because a major victory against the Goliath of abortion hasn’t been achieved yet.
Instead, we should see the Court as an essential piece in the future outlawing of abortion and as a levee that holds back forces that want not just to maintain abortion, but subject to it our tax dollars and even our consciences. For example, in NIFLA v. Becerra (2018) the justices nominated by Democrats upheld a California law mandating that pro-life pregnancy centers advertise abortion services to their clients. Thankfully, the five justices nominated by Republican presidents overturned the law.
Given the stakes that are involved, it makes no sense to yield such a powerful institution to politicians intent on keeping abortion legal forever out of a speculative (and fallaciously reasoned) hope that abortions might go down a little bit more during their administrations. Instead, pro-lifers should do everything in their power not just to get the right justices confirmed, but even more importantly, to prevent the wrong justices from being confirmed; justices who will not only try to keep abortion legal forever but seek to expand it and impose it upon the American people.
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