Abortion Issue Likely to Dominate Top Court Pick Hearings
If recent history is any indication, the confirmation hearing of Brett Kavanaugh, President Donald Trump's latest Supreme Court pick, is likely to be dominated by questions about his views of Roe v. Wade.
The landmark 1973 Supreme Court ruling, which held that the U.S. Constitution protects a woman's right to a have an abortion, stands as one of the high court's most controversial and divisive decisions of the past century.
While polls show a majority of Americans support legal abortion, Roe v. Wade continues to divide broad swaths of society, pitting advocates, who see the decision as giving women power over their lives, against foes, who view it as an affront to the sanctity of life.
But the fracas over abortion predates Roe v. Wade. According to Peter Charles Hoffer, a historian and author of Roe v. Wade: The Abortion Rights Controversy in American History, the debate goes back to the 1861-65 American Civil War.
With the war wiping out nearly 2 percent of the American population, many doctors and pundits at the time claimed "the white race was in danger of disappearing" and states began to criminalize abortion, according to Hoffer.
The anti-abortion laws survived into the 20th century. And though several states legalized the practice later in the century, aborting a fetus remained a crime in most states prior to Roe v. Wade. That led to a bustling underground industry in often dangerous "back alley" abortions.
The case that came to be known as Roe v. Wade was brought by Norma McCorvey, a k a Jane Roe, a 23-year-old expectant mother in Texas who could not afford to support a child and did not want to undergo an illegal procedure. She sued Henry Wade, then the Dallas district attorney known for prosecuting abortion doctors.
The U.S. Supreme Court sided with Roe, ruling that the right to privacy alluded to in the Constitution extended to a woman's right to have an abortion and that states could not legally ban the procedure.
In his book, Hoffer calls Roe v. Wade "a watershed event in American women's history."
"This is an issue that sits right across the divide between liberal, modernist opinions and more conservative, traditional religious opinions," Hoffer, a professor at the University of Georgia, said in an interview.
Supporters of abortion rights brand themselves as "pro-choice" advocates.To them, Roe v. Wade became a symbol of women's rights, the power to take control of one's reproductive life without government interference.
To opponents of abortion, Roe v. Wade is an affront to the sanctity of life, and abortion is the murder of an unborn child.
Yet the political divisions over abortion are not always so cut and dried. There many moderate Republicans who support abortion rights, and many socially conservative Democrats who oppose them.
But since the 1980 election of Ronald Reagan, who won on a wave of support from pro-life Christian evangelicals, abortion has become a decisive issue in American electoral politics, according to Hoffer.
In recent years, Democratic presidential candidates have almost always run on a pro-choice platform, while their Republican opponents have campaigned against abortion.
Trump's views on abortion have shifted over the years. As a presidential candidate, he promised to appoint conservative, pro-life justices to the Supreme Court to undo Roe v. Wade. But he's since said he has no litmus test on Roe v. Wade for picking high-court nominees other federal judges.
Some fear tilt
Nevertheless, with the nomination of Kavanaugh to replace the retiring Justice Anthony Kennedy, who was a swing vote on many social issues, liberals fear the high court is likely to tilt further to the right, threatening to undermine landmark decisions such as Roe v. Wade.
"It's absolutely at risk of being overturned, and certainly at risk of being hollowed out," said Marge Baker, executive vice president of People for the American Way, a liberal-leaning advocacy organization.
But Trump allies are downplaying the risk that Roe v. Wade will be overturned.
Leonard Leo, vice president of the conservative Federalist Society who advises Trump on Supreme Court nominations, called the Democratic warnings that the court would overturn Roe v. Wade a "scare tactic."
"We've seen this kind of hysteria for the last 36 years," Leo told Fox News on July 2. "Every time, they say Roe v. Wade is going to be overturned. Now, what we have after 36 years is one justice on the court — Clarence Thomas — who's explicitly said he's going to overturn Roe."
But abortion rights advocates say there are other things the justices can do to chip away at the decision without overturning it.
"There are lots of ways to hollow out Roe v. Wade," Baker said. "Short of overturning it, there are ways to make it essentially impossible for women to have access to abortion."