Is Trump’s Supreme Court nominee an abortion foe’s dream – or nightmare?

David Gibson

Document Publication: Religion News Service

Publication Date: March 29, 2017

 Religious conservatives whose support propelled Donald Trump to the White House often justified misgivings about the Republican’s character flaws by arguing that Trump’s potential picks for the Supreme Court overrode all other factors because the justices’ rulings would determine the course of the nation’s future far beyond any president’s term.

Chief among the victories expected from a court led by GOP picks was a decision to overturn the 1973 Roe v. Wade decision that legalized abortion. In Trump’s first nominee, Judge Neil Gorsuch, abortion foes were convinced they had the jurist who would fulfill Trump’s campaign promise to appoint justices who would deliver the reversal they have worked decades to achieve.

But now, after last week’s hearings before the Senate Judiciary Committee, some are voicing concern that Gorsuch might not be such a reliable anti-Roe vote after all.

Their hesitation stems largely from Gorsuch’s unexpectedly strong suggestions that he would not overturn long-standing precedents such as Roe, or even the 2015 Obergefell v. Hodges ruling that legalized gay marriage.

“All the conservative fawning over Gorsuch in the world doesn’t change the fact he called Roe and Obergefell settled law under oath today,” tweeted Steve Deace, a nationally syndicated radio host and prominent Christian conservative.

Travis Weber, who attended the hearings as director of the Family Research Council’s Center for Religious Liberty, said he appreciated Gorsuch’s endorsement of an “originalist” view of the Constitution – a view that says justices should limit their rulings to conform to the original intent of the Founding Fathers.

But as far as the nominee’s comments on precedent, Weber said, “If you draw them out to the nth degree, you’re kind of left wondering, ‘Is he going to overturn Roe?’

“On the one hand we do have a lot of confidence in his judicial philosophy of originalism and trust he is going to apply that,” said Weber, who, like other conservatives, believes an originalist would find no “right to an abortion” in the Constitution.

“On the other hand, because he did not give any indication to anyone of how he would rule, we do have concerns that he may not ultimately vote to overturn Roe.”

Neil Gorsuch, left, and President Trump smile as Trump nominates Gorsuch to be an associate justice of the U.S. Supreme Court at the White House on Jan. 31, 2017. Photo courtesy of Reuters/Kevin Lamarque

To be sure, confirmation hearings can be exercises in obfuscation, with nominees delivering well-rehearsed nonanswers designed to avoid committing them to a verdict on a future ruling – and to avoid giving senators a reason to oppose them.

Indeed, as Gorsuch told senators pressing him on whether Trump asked him whether he would overturn Roe v. Wade: “No … I would have walked out the door.”

Moreover, justices can, and do, rule as they see fit once they are safely ensconced on the high court. They have a lifetime appointment and the freedom that comes with it.

“I have long been a critic of confirmation hearings which take on a kabuki-type character of stilted, pre-ordained movements,” Jonathan Turley, a George Washington University law professor and USA Today columnist who testified at the hearings in favor of Gorsuch’s confirmation, wrote in an email. “We often seem to know less about nominees after these hearings than we thought we knew before.”

In addition, Gorsuch, 49, a federal appellate judge on the U.S. Court of Appeals for the 10th Circuit, was something of a blank slate on the issue of abortion coming into the hearings.

He has written against euthanasia and in support of the “intrinsic” value of all human life, and he studied under the well-known Catholic legal professor John Finnis, a proponent of “natural law” theory. But Gorsuch has never issued a direct ruling on an abortion-related case.

Yet so much is at stake for abortion foes that for many, anything less than a sure bet against Roe — and Planned Parenthood v. Casey, the 1992 decision that bolstered Roe’s reasoning — is unnerving.

If a high court with Gorsuch as the swing vote were to refuse to overturn Roe, then it is hard to see how any Supreme Court would ever do so. And if abortion opponents were stuck with both Roe and Trump, their political credibility could take a major hit and the movement could be forced to rethink its entire strategy.

That’s why there was consternation when Gorsuch testified at several points that he saw Roe as “settled” law and a clear precedent set by the court.

“Part of the value of precedent — and it has lots of value, it has value in and of itself, because it is our history and our history has value intrinsically. But it also has an instrumental value in this sense: It adds to the determinacy of law,” he said when pressed on his view of Roe.

“Once a case is settled, that adds to the determinacy of the law,” Gorsuch added. “What was once a hotly contested issue is no longer a hotly contested issue. We move forward.”

Some liberal commentators who feared the worst from a Trump appointee still argue that despite his testimony, Gorsuch – who is expected to be confirmed by the GOP-dominated Senate next month despite Democratic opposition – would undermine the right to abortion.

They found unlikely allies among some conservative activists and pundits who sought to calm jangled nerves on the right.

National Review’s Ramesh Ponnuru acknowledged that “pro-lifers have been burned often enough by Republican appointees to the Supreme Court to be nervous when watching confirmation testimony.” But, he wrote in a column, abortion foes “shouldn’t panic about Gorsuch’s comments on Roe” because the nominee was being deliberately opaque.

The Rev. Frank Pavone, national director of Priests for Life, leads a prayer during the March for Life anti-abortion rally in front of the U.S. Supreme Court building on Jan. 22, 2009. Photo courtesy of Reuters/Jonathan Ernst

The Rev. Frank Pavone, leader of Priests for Life and a prominent Trump supporter, took a similar approach. Referring to Gorsuch’s statements on precedent, Pavone wrote in an email that “while it can sound like this means (Gorsuch) would uphold Roe, it doesn’t.”

The nominee was simply refusing to be pinned down, Pavone wrote, and his originalist philosophy still stands: “If in fact the Court is not supposed to make law, that means that decisions like Roe will be invalidated, and the people will again be empowered to protect their unborn children.”

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