- The Washington Times
Sunday, July 12, 2020

The big win the Supreme Court handed to pro-choice advocates this term is not silencing Democrats who are warning on the campaign trail about the conservative high court nixing Roe v. Wade.

Republican-appointed Chief Justice John G. Roberts Jr. sided with the liberal wing of the court in the recent 5-4 ruling that struck down a Louisiana law threatening to shutter abortion clinics. Some court watchers said his alignment should calm liberals’ fears.


And yet, the left distrusts the chief justice and seethes about Trump appointees Justice Neil M. Gorsuch and Justice Brett M. Kavanaugh.

“Anyone who believes Roe is safe now, or that the future staffing of the court shouldn’t affect their vote at the polls in November, is fooling themselves,” said Elizabeth Wydra, president of the liberal Constitutional Accountability Center. “The same threat to Roe that existed after the confirmation of Justices Gorsuch and Kavanaugh exists today.”

The same message echoes throughout the top races.

In Maine, Republican Sen. Susan M. Collins’ reelection campaign is under sustained fire for her vote to confirm Justice Kavanaugh, who would have upheld Louisiana’s abortion law.

The law required doctors performing abortions to have admitting privileges at hospitals within a 30-mile radius of the clinic, similar to a Texas law struck down by the justices in 2016.

The Louisiana case was Justice Kavanaugh’s first time grappling with the issue since joining the high court in 2018.

He would have sided with Louisiana officials who said the law was aimed at ensuring pregnant people receive safe health care. Justice Kavanaugh wrote a dissent, arguing more facts were necessary in the case, so a new trial should have been held before siding with the abortion providers.

Both of President Trump’s appointments joined a dissent authored by Justice Samuel A. Alito Jr., which argued the Louisiana law should be upheld and questioned if abortion providers — instead of women — should be able to bring the legal challenge.

“They agreed with that,” fumed Paul Gordon, legislative counsel at the liberal People for the American Way.

That’s enough to keep the issue on the front burner in Senate races, he said.

Democrat Sara Gideon, speaker of the Maine House of Representatives, is running against Ms. Collins and used Justice Kavanaugh’s position in the case to attack her competitor since Ms. Collins was the deciding Republican vote in the Senate that cleared Justice Kavanaugh’s confirmation after he faced a decades-old sexual misconduct accusation.

“Sen. Susan Collins knew where Brett Kavanaugh stood on reproductive rights, and she voted to confirm him anyway. Maine needs a senator who will always fight for our reproductive health. Donate to support our campaign for #MESen,” Ms. Gideon tweeted.

Emily’s List also fundraised for Ms. Gideon off the ruling, blasting Ms. Collins for confirming “anti-choice” judges, naming Justices Kavanaugh and Gorsuch.

Ms. Collins defended her votes and dismissed accusations the justices would vote to outlaw abortion. Ms. Collins also voted to confirm President Obama’s two Supreme Court picks, Justices Elena Kagan and Sonia Sotomayor, both of whom voted to strike down the Louisiana law.

“Some have tried to suggest that this opinion is an indication of how certain justices would vote on the question of whether abortion will remain legal. That is reading too much into this specific decision. As Justice Gorsuch noted, ‘In truth, Roe v. Wade is not even at issue here.’ And while Justice Kavanaugh called for additional fact finding in this case, he did not indicate in his dissenting opinion that he supports overturning Roe,” Ms. Collins said.

The Maine Republican is not alone. Other GOP senators up for reelection are being hit for their support of Mr. Trump’s judicial nominees.

Recently, a coalition of liberal groups released a video attacking Sen. Joni Ernst, Iowa Republican.

People for the American Way, Iowa Alliance for Retired Americans and Progress Iowa say Ms. Ernst has supported Mr. Trump’s judges, who are a danger to health care as they oppose Obamacare, Medicare, Medicaid and Social Security.

Aaron Britt, a spokesman for the Republican Party of Iowa, called the criticism “lies.”

“Iowans know that Joni Ernst stands up for them, fights to protect Social Security for seniors, and is working across the aisle to lower health care costs,” Mr. Britt said.

Conservative court watchers say the accusations that the high court would overturn abortion precedent is unfounded.

“I don’t think anyone wants to overturn Roe at this point,” said Josh Blackman, a professor at South Texas College of Law.

He stressed that Chief Justice Roberts, an appointee of President George W. Bush, was the deciding vote in the Louisiana case.

Others argue that Chief Justice Roberts essentially invited more challenges to abortion in his opinion, with his voted narrowly focused on respecting the ruling in the Texas case four years earlier.

Adam Feldman, the founder of Empirical SCOTUS Blog, said abortion precedent “hinges” on Chief Justice Roberts’ vote.

“Since abortion cases can show up dealing with so many other themes I don’t think this signifies that Roberts will necessarily uphold other abortion precedent,” he said.

Elie Mystal, the justice reporter for The Nation, a liberal magazine, said Republicans have done a better job than Democrats in elections of messaging about the importance of judicial appointments and how their rulings can affect everyday life.

“The Republicans have done a great job of making the one to one link between what you want in your culture war and the need to get judges on the federal courts and justices on the Supreme Court. Liberals, the Democrats do a terrible job of making the one to one link,” he said.

He noted the Democrats should discuss Justices Ruth Bader Ginsburg and Stephen G. Breyer on the campaign trail because both are in their 80s and could leave the court, creating a vacancy the next president would fill.

• Seth McLaughlin contributed to this report.


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