Supreme Court vacancy spotlights Roe v. Wade & GOP War Against Women
Alexander Drago / Reuters The American flag flies at half-staff following the death of Supreme Court Justice Ruth Bader Ginsburg, outside the U.S. Supreme Court, in Washington, D.C., on September 18, 2020.
Vicki Ringer received a text from a friend last Friday night that read simply, “OMG RBG,” informing her that Supreme Court Justice Ruth Bader Ginsburg had died.
“My gut just dropped,” said Ringer, 52, a South Carolina Democrat who advocates for abortion rights. Immediately, she thought of the implications of a Supreme Court vacancy so close to the election. “I felt like, we don’t have the luxury of depression or mourning or panic,” she said. “What we have to do is double down on our efforts.”
With less than six weeks to go until Election Day, Ginsburg’s death has thrust a longtime hypothetical to the forefront of many voters’ minds: the possible overturning of Roe v. Wade, the landmark 1973 Supreme Court decision that guarantees a woman’s right to an abortion. The threat has galvanized a swath of Democratic voters, especially women, while some Republicans are hoping to seize their “best chance in decades” to strike down the ruling and let individual states regulate abortion.
Abortion rights activists have long warned of Roe v. Wade’s potential demise, but the prospect seemed remote to many, especially younger women; now it is suddenly less abstract. President Trump plans to name a replacement for Ginsburg on Saturday and Senate Majority Leader Mitch McConnell (R-Ky.) has promised that Republicans will confirm the nominee by Election Day.
Most White House allies expect the nominee to be Judge Amy Coney Barrett, whose writings and rulings have led many on both sides to conclude she would vote to overturn Roe. That means within weeks, the court could be tilted 6-3 in conservatives’ favor.
But centering the election on abortion could be a delicate calculation for Trump and his allies, and so far the president has left the prospect of Roe’s demise largely unspoken, lest he risks losing support among suburban women.
Samuel Corum / Getty A mother holds her child in front of a makeshift memorial to honor Supreme Court Justice Ruth Bader Ginsburg at the U.S. Supreme Court on September 19, 2020.
About two-thirds of Americans support keeping Roe v. Wade in place while 29 percent favor overturning it, according to a CBS News poll published in June. Democrats — and, by a large margin, women — are more likely than Republicans and men to say abortion is an important factor in their 2020 vote for president, according to a Washington Post-ABC News poll.
Trump, speaking at the White House on Wednesday, downplayed any particular legal issues facing the court and instead praised the qualifications of his prospective nominee. “I think it will be a great nominee, a brilliant nominee,” he said. “As you know, it’s a woman. We’ve brought it down to five women. It’s time for a woman to be chosen with everything that’s happened.”
Democratic nominee Joe Biden is also treading carefully around the issue. Many strategists say it makes little sense for Democrats to emphasize abortion, which could energize social conservatives, especially in swing states, as much as it mobilizes liberal women. Instead, they are urging Democrats to stress that a conservative court would threaten the future of the Affordable Care Act since health care is a paramount issue for voters.
But if party leaders are being circumspect, activists on the ground have little doubt about the stakes.
“Trump’s appointment, in and of itself, is an anti-choice move,” said Stephanie Schriock, president of Emily’s List, which supports pro-choice female candidates. “People know that because he has made it very clear that he is only going to nominate someone who is going to overturn Roe v. Wade.”
She added, “That is a mobilizing factor for our side. You could make an argument that it’s somewhat mobilizing for theirs, but . . . this is still very much a pro-choice nation.”
Biden’s own stance on abortion issues has evolved over the years, and at times the former vice president, a devout Catholic, has lagged behind fellow Democrats in embracing expanded abortion access. It wasn’t until last summer — shortly after launching his campaign — that he reversed his longtime support for the Hyde Amendment, which bans federal funding for abortions. He did so after criticism from liberals, women’s groups, and primary opponents.
“We’ve seen state after state, including Georgia, passing extreme laws,” Biden said at the time at an event in Atlanta, explaining why he had switched to supporting a Hyde Amendment repeal. “It’s clear that these folks are going to stop at nothing to get rid of Roe.”
Asked by reporters Wednesday about Coney Barrett as a potential nominee, Biden said he doesn’t know her and pivoted to stressing the threat to women’s health care.
“This is an abuse of power what they’re doing, and I think we should focus on what this is going to mean for health care — what it’s going to mean to once again have to say if you’re pregnant it’s a preexisting condition, to be able to charge women more for the same procedure as men,” Biden said. “It’s wrong.”
An anti-Roe majority on the court would not necessarily ensure the decision’s immediate demise, since the justices are sometimes wary of striking down well-established precedent. But Roe may be in greater danger than at any time since it was handed down almost a half-century ago, and even if it is not quickly thrown out, a conservative court could aggressively whittle away at abortion rights by upholding restrictive state laws.
Either way, the prospect of a Supreme Court tilted 6-3 in conservatives’ favor has already emboldened some Republicans to publicly target Roe v. Wade. Last Saturday, Sen. Josh Hawley (R-Mo.) restated his pledge to vote only for nominees “who understand and acknowledge that Roe was wrongly decided.”
Within hours of Ginsburg’s death, the issue flared up in a special Senate race in Georgia. Republican Sen. Kelly Loeffler said she looked forward to supporting a nominee who would “protect the unborn.”
Rep. Douglas A. Collins, a fellow Republican challenging Loeffler for her seat, was less subtle, tweeting on the night Ginsburg died, “RIP to the 30 million babies who died during the years she was defending abortion.” He has not backed down from that tweet despite criticism, adding later, “We’ve got our best chance in decades to strike down Roe V. Wade. Let’s take it.”
Meanwhile, Democratic candidate Raphael Warnock declared himself to be “a pro-choice pastor fighting for reproductive justice.”
The rhetoric in many ways echoes the debate that has surrounded recent Republican efforts to weaken abortion rights, but with a more urgent focus. Since last year, there have been more than 300 bills introduced across the country to restrict abortion access, and 11 states have passed limits or bans on “many or most” abortions, though so far courts have ruled these laws unconstitutional.
Antiabortion activists made it clear even before the court vacancy that they would go all-out to reelect Trump.
“As he rolls out executive orders and gives speeches and the policies that have been coming out of his administration have been amazing, I think people have just kind of been like, ‘Wow, this is so much better than we could have hoped for,’ ” said Carol Tobias, president of the National Right to Life Committee. “And I just know that there’s been building, for a couple years, this great enthusiasm to reelect this president.”
Ira L. Black / Corbis via Getty A marcher holds a sign that says "Fight like RBG" with a picture of Ruth Bader Ginsburg wearing boxing gloves, as she walks past Trump International Tower during the Women's March in New York's Manhattan borough on January 18, 2020. For abortion-rights activists, the fight that has emerged since Ginsburg’s death “has crystallized exactly what is at stake,” said Kelley Robinson, executive director of the Planned Parenthood Action Fund.
“People are understanding that this is real,” she said of the threat. “The other side of that is, man, people are fired up and ready to take action to honor her legacy.”
Robinson said teams worked through last weekend to help organize vigils across the country. At an event Saturday night in Washington, D.C., which drew about 2,500 people, there was no reticent to invoke the danger of losing Roe v. Wade.
“Ruth fought for the right of every woman in this country to make their own decisions about her body. And she never gave up on that fight,” Sen. Elizabeth Warren (D-Mass.) shouted from the steps of the Supreme Court.
Planned Parenthood has reported a spike in interest, citing 60,000 unique views for a Facebook briefing to supporters on Sunday night. Part of what is giving Ginsburg’s death such an impact, Robinson said, is that she was a champion for gender justice on many fronts beyond abortion, including voting rights and equal pay.
“She’s our hero in that way,” Robinson said. “That is the kind of momentum that we’ll continue to bring into this fight to hold that seat open until the next president is inaugurated.”
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