The passing of Supreme Court Justice Ruth Bader Ginsberg has placed the focus of the next presidential election squarely on the Supreme Court. This nomination is seen as crucial to overturning Roe v. Wade for conservatives and a threat to reproductive rights for liberals. Yet, the arguments are overblown and the hyperbole on both sides is draining. Each side is using this issue of abortion to motivate and energize followers.
Roe v. Wade will not be overturned by a conservative court under any circumstances. The high court could be composed of nine conservatives and they would not overturn Roe. For my entire adult life, Republicans have run for the Senate and presidency putting abortion and overturning Roe v. Wade as the central argument for turning the court conservative. Since Ronald Reagan was first elected in 1980, Republicans have argued that they will appoint pro-life judges to the Supreme Court with the singular goal of overturning Roe v. Wade. Conservatives are still waiting, and they will continue to wait. Since the appointment of Antonin Scalia in 1986, conservatives have held a 5-4 majority on the court. Nine of the last thirteen Supreme Court Justices have been appointed by Republican Presidents who made overturning Roe v. Wade central to their campaigns. Six of the seven Roe v. Wade majority opinion Justices were replaced by Republican Presidents after 1980. Even if Ginsberg is replaced by Trump with one of the people on the short list like Lagoa or Barrett, the right for women to have an abortion will be upheld 5-4. I would wager that Gorsuch or maybe Kavanaugh would join with Roberts to keep Roe the “Law of the Land”. There may be some nibbling at the margins with regards to third trimester abortions or such, but the basic right will remain intact.
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Why? At the most basic level, it is not in the political interests of Republicans to overturn it. It is far easier to motivate people to vote by promising that you will do something for them than that you will keep something for them. Before Roe, it was the women’s movement and the prochoice activists that were energized to organize and work to make abortion legal. After Roe, prolife forces organized to undo it. People often take for granted what they have. Republican power holders are acutely aware of this. They know that if Roe is overturned, it will actuate prochoice forces and become a central issue while prolife forces will deactivate, since they got what they wanted, and move on to another issue.
In a recent poll, “A total of 77% say the Supreme Court should uphold Roe, but within that there's a lot of nuance — 26% say they would like to see it remain in place, but with more restrictions added; 21% want to see Roe expanded to establish the right to abortion under any circumstance; 16% want to keep it the way it is; and 14% want to see some of the restrictions allowed under Roe reduced. Just 13% overall say it should be overturned.” “More than half (53%) of Americans say they would definitely not vote for a candidate who would appoint judges to the Supreme Court who would limit or overturn Roe.”
Republicans understand that public opinion is against them on this issue. They can tinker and add a few reasonable restrictions, but wholesale overturning of Roe would fly in the face of what voters want for a party that holds too many minority positions. Since 1980, Republicans have lost the popular vote in six of ten presidential elections. While they have won the Presidency in three of the last seven elections, they have lost the popular vote in six of the last seven. Both political parties have cast their lot with the absolutists even though the public has much a more nuanced opinion of the issue. Overturning Roe would cause the issue to become front and center for supporters of some form of legal abortion, but keeping it legal makes it front and center for the evangelicals, a key part of the Republican base.
So, what do Republicans want from a more conservative court if not overturning Roe? They have been getting it for the last 30 plus years. Conservatives may say it is about abortion, but the rightward tilt of the court is really about building a pro-corporate court that grants business wide latitude in their disputes with labor, consumers, and the government: one that reduces the “burdens of the regulatory state”.
As one analysis put it, “[M]ost Americans pay attention to the Court only when it decides hot-button social or political issues like marriage equality, abortion, and immigration. As is often the case, however, this term the Court’s docket was packed with under-the-radar disputes with broad implications for business and the economy. So, while Americans were debating whether the liberals or conservatives were winning, corporations and business interests were spending enormous resources to be sure that they came out once again on top.”
In the last decade, “it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes. It has limited protections for whistleblowers, forced changes in the Securities and Exchange Commission, made water pollution suits more difficult to bring, and erected additional obstacles to class action suits against businesses.”
Since the Rehnquist Court, there have been at least five justices—and sometimes more—who tilt hard to the right when it comes to disagreements between corporate power and the public interest. Ruth Bader Ginsberg was the least corporate-friendly justice on the court and that is what has conservatives licking their lips at the prospect of a 6-3 conservative split on the court. Not abortion.