This week the United States Supreme Court heard arguments in the case of Dobbs vs Jackson’s Women’s Health Organization. This case is about the state of Mississippi’s anti-abortion law which bans most abortions after 15 weeks and was drafted to challenge the Supreme Court’s 1973 Roe vs Wade decision, which legalized abortion in all 50 states. The Supreme Court will not issue its ruling on Dobbs vs Jackson’s Women’s Clinic till the summer of 2022.
To be clear, were the court to overturn Roe vs Wade, abortion would not be illegal in the United States. But doing so would allow states to further regulate and even ban abortion. Red states like Mississippi would move quickly to severely restrict if not outright ban abortion in most cases. Blue states would act immediately to protect abortion.
Abortion has been a deeply contentious issue in the United States for decades, the source of endless debate and argument. However, public polling on the matter is remarkably consistent. According to Pew Research, in 2021 59% of the American public thought abortion should be legal in ‘all or most cases’. Of course the terminology ‘all or most’ will necessarily have different meanings for different respondents. Whatever ‘all or most’ may mean, the American public inarguably believes abortion should be legal in at least some cases and there is little public appetite for an abortion ban outright. There is a great partisan divide on the issue though. According to Pew, 60% of Republicans are pro-life while 80% of Democrats are pro-abortion. Pew points out, ‘Though abortion is a divisive issue, more than half of U.S. adults take a non-absolutist position, saying that in most – but not all – cases, abortion should be legal (34%) or illegal (26%).’
Which doesn’t stop pro-life groups from trying to ban abortion. That same pew poll showed 39% of Americans think abortion should be illegal in ‘all or most cases’. The number of pro-life Americans has been consistent throughout the decades. That number stood at 42% in 2011 and 43% in 2001. The pro-life position is central to American conservativism today. Most, but not all Republican politicians are pro-life. Every Republican president since Ronald Regan has been pro-life, even Donald Trump.
Pro-life conservatives seek to ban abortion through a supreme court decision. Republican presidents have nominated five justices to the Supreme court this century. These include two by George W. Bush, Samuel Alito and John Roberts, both in 2005. President Trump nominated three justices, Neil Gorsuch in 2017, Brett Kavanaugh in 2018 and Amy Coney Barrett in 2020, mere weeks before the election. President Barrack Obama filled two Supreme Court seats and appointed Sandra Sotomayor and Elena Kagan, both are reliable liberal votes. When Reagan nominee Anton Scalia died in 2016, Republican Senate Majority Leader Mitch McConnel refused to advance Obama’s replacement to the senate floor for a vote, current attorney general Merrick Garland. The abovementioned Neil Gorsuch now holds this seat. Democrats have argued that Republicans stole the seat ever since. Between Bush and Trump, the supreme court is decidedly more conservative than it was a generation ago.
During the contentious court nominating battles going back to the 1980s, Democrat senators have demanded to know Republican nominee’s views on Roe vs Wade. Inevitably nominees replied that Roe vs Wade is ‘a matter of settled law.’ No Republican nominee has ever stated they’d vote to overturn Roe vs Wade while every Democrat nominee has pledged to defend the decision.
As right leaning as the Supreme Court is now, Democrats fear it could become even more so. The third liberal justice on the court is Stephen Breyer, who is 83. Liberals are pressuring him to step down now, while the Democrat Party holds the White House and senate and can replace him with whomever Biden wants. It is entirely possible that the GOP will win back the senate in the 2022 midterm elections making Mitch McConnel Senate Majority leader once more. And who knows what his reaction to a supreme court vacancy will be? In fact, he’d be under intense pressure from the right to hold the vacant seat open till after the 2024 presidential election. Conservatives would certainly argue that after decades of Democrat supreme court nomination dirty tricks (foreign readers should look up the Bork, Thomas and Kavanaugh nominations) McConnell should do whatever he wants. In fact, conservatives argued just that with the Amy Coney Barret nomination.
There is a potential solution to the current Democrat problem and a spectacular rumor floating around Washington. It’s no secret that Vice President Kamala Harris is not popular with President Biden’s staff. Nor is she popular with the public. A USA Today/Suffolk University poll conducted in mid-November found only 28% of the public approved of the vice president. If the left convince Breyer to retire, Biden could offer Harris a nomination to the Supreme Court so that Biden’s team could replace her with a better candidate. Silly rumors abound in Washington.