Politics & Policy

Abortion and the Brett Kavanaugh Hearings: A Plan for Senate Republicans

Supreme Court nominee Judge Brett Kavanaugh at the White House, July 9, 2018. (Leah Millis/Reuters)
They can make the Democrats lose their appetite for this issue.

George Sutherland, the former Senator from Utah, was just returning from Europe, where he was negotiating on claims of arbitration for his country, and when he arrived back at his apartment in Washington, there was a letter from President Harding: “Since your departure for Europe you have been nominated and confirmed as a Justice of the Supreme Court of the United States.” The vacancy on the Court had been opened — and filled — on the same day, without Sutherland’s  being told.

That was 1922. Since then, as we’ve seen, things have been notably different. We are bracing now for what promises to be the most rancorous hearings for the Court since the nomination of Robert Bork in 1987. The violence of the reaction, the hyperbolic assaults on Brett Kavanaugh within the first 24 hours, already exceed the whirlwind of the attacks on Bork. For the main issue at stake then is even more at stake now.

When the Court established, in 1973, a constitutional right to abortion, it suddenly made the issue of abortion the business of the federal government, and a poisonous part then of our national politics. President Trump remarked, on introducing his nominee, that just beneath the gravity of making decisions on peace and war, the appointment of a justice to the Supreme Court was now the most consequential decision that a president can make. But that should not be true. It has come closer to the truth since the Court began extending its reach and remaking the culture, with decisions on pornography, contraception, abortion, homosexuality, and same-sex marriage. In the name of “privacy,” the Court has spun out a jurisprudence of sexual liberation, which now licenses more and more intrusions of the state into the privacy of the family. It will soon become the business then of a federal court to decide whether a legislature may bar parents from seeking counsel for their children who suddenly discover an adolescent passion to change their sex. Under these conditions, as David Forte has so tellingly remarked, the president is cast in the role of the “Prime Elector”: He is the one who will choose those people, serving for life, who will indeed rule us on virtually everything that touches our lives.

Since the nomination of Bork, every conservative nominee was thought to bring the Court closer to the overturning of Roe v. Wade, and that prospect seems ever more plausible now with the replacement of Justice Anthony Kennedy. He has been the “swing judge,” who has governed the outcome of cases on abortion and same-sex marriage. And 26 years ago he had led the defection of three Republican appointees to preserve Roe v. Wade for yet another generation.

And yet, even as the intensity builds, we have reached a point now where the Conversation/Argument over abortion at the hearings can actually be brought to an end. For much has changed over 26 years, with the Court — and the Congress — preparing the way. Justice Kennedy was unwilling to overturn the right to abortion, but in 2007 he joined his conservative colleagues in sustaining the federal bill that barred the grisly procedure called “partial-birth abortion.” With that decision, and with Justice Kennedy on board, the Court announced in effect that it was now in business to start receiving cases coming from the states — cases in which the laws seek to cast protections on the child in the womb. They could be laws requiring that women contemplating abortion be shown ultrasound images of the child they might abort, or they could be laws that barred abortions when a beating heart could be detected in the child.

Public-opinion surveys have shown that around 65 percent of the public would oppose abortions at that point. What most of the public may not know is just how early that beating of the heart can be detected (as early six weeks with ultrasound, and ten weeks with Doppler devices). Of course, the beating of the heart is not itself the measure of when human life begins; that life is confirmed and measured in the dynamic growth of the life already there, bringing the heart in place in time, as it would later bring lungs and arms and toes into place. All of these issues may now come more readily to a Court containing at least five members willing to sustain them.

But as an issue for Ending the Conversation — or making the Democrats lose their appetite for raising the issue any longer — nothing stands as decisive now as the votes already taken on the Born-Alive Abortion Survivors Protection Act. That act was passed in the House in January of this year, a follow-up to a bill passed into law in 2002 and billed as the “most modest first step” in legislating on abortion: an act to bar the killing of a child who survived an abortion. That bill was brought forth to break out information that most of the public would find jolting: that the right to abortion was not confined to the first three months of pregnancy, that it extended through the entire pregnancy — and even when the child was born. In one notable case of a child who had survived an abortion for 21 days, a well-known federal judge ruled that “the fetus in this case was not a person whose life state law could protect.” It was a child marked for abortion — which is to say, the right to abortion meant the right to an “effective” abortion, or a dead child.

Hence the Born-Alive Infants Protection Act. But the penalties were dropped from that early bill for the sake of averting a veto from President Clinton. Still, many Democrats were inclined to resist any bill that cast an adverse judgment on abortion, and on a right they had come to regard as beyond reproach or challenge. As it turned out, the absence of those penalties made that original act virtually impossible to enforce. The issue was raised again, though, in a dramatic way by the discovery of the killings carried out by Dr. Kermit Gosnell in Philadelphia. Gosnell’s practice specialized in late-term abortions, and he showed no hesitation in cutting the necks of babies who survived. The escapades of Gosnell merged with a stream of other accounts of babies being delivered in hospitals and then put into refuse rooms to die (the so-called live-birth abortion).

If the nominee is asked whether he regards Roe as settled law, he can point out that, in the judgment of virtually all Democrats in the House, the right to abortion extends beyond the pregnancy and entails the right to kill a child born alive.

The move was made then to restore the penalties that had been stripped from the original act. There could be civil and criminal penalties now for doctors and staff who engaged in this kind of killing. The Democrats had been corralled with real reluctance to vote for that original bill in 2002 by a voice vote, but now things were dramatically changed: President Obama declared that he would veto the new bill — just as he had managed to block a similar bill when he was a state senator in Illinois. Obama’s declaration liberated the Democrats to vote their true sentiments. And so when the bill came to the floor of the House in September 2015, the vote was 248–177. Every Republican voted for the bill, along with five Democrats; all votes in opposition came from the Democrats. When the bill was introduced anew in January of this year, the split was comparable, 241–183, with all votes in opposition coming again from the Democrats.

Surely, the coming hearings cannot be unaffected by this striking new position of the Democrats. If the nominee is asked, for the umpteenth time, whether he regards Roe v. Wade as settled law, he can point out now that, in the judgment of President Obama and virtually all Democrats in the House, the right to abortion, established in Roe, extends beyond the pregnancy and entails nothing less than the right to kill a child born alive. If the nominee has an edge of daring, he might invite the inquiring senator to say whether he shares that understanding of Roe held by President Obama and Democrats in the House.

But in these pusillanimous times, the “handlers” who manage the Republican nominees would recoil from any move of that kind for the nominee to counter the interrogators with a question of his own that could embarrass and inflame them. For my money, that strategy reeks of weakness, not confidence. To be fair: There are reasons rooted in prudence for following that playbook. The inflaming of the Democrats could have the effect of scaring certain Republicans as well, most notably Susan Collins and Lisa Murkowski. I’ll yield to no one in the popular game of disparaging these two worthies as Republicans, but we need to remind ourselves of a sobering truth: In a closely divided Senate, it is the presence now of these two “pro-choice” Republicans that makes it possible for the pro-life party in our politics to have control of the Senate. That alone may make us far more willing to avoid the kind of aggressive play that baits the Democrats and takes things to the edge.

But if the nominee is constrained here from jousting, even in a tempered way, with the Democrats, the Committee on the Judiciary includes Republican Senators with the moxie to get the same job done. Senator Ben Sasse of Nebraska sits on that committee, and he has introduced the Abortion Survivors bill in the Senate. He could probably be depended on to tee things up for the nominee — and for his colleagues. He could point out the radical position staked out now by President Obama and the Democrats in the House, and he could put the question: Is that a plausible construction of the “right” that was proclaimed by the Court in Roe v. Wade — that it extends beyond the pregnancy and involves nothing less than a right to kill a child born alive who survives the abortion? That alone would bring jolting news to a public that has long preferred not to think overly much about abortion. On the right as well as the left, Roe v. Wade has been labeled a “super-precedent.” But if that position staked out by Obama and a large chunk of the Democratic party is regarded now as a plausible interpretation of Roe, that would be quite enough in itself for Sasse to make this telling point: that the very meaning of this “super-precedent,” 45 years later, is not at all as “settled” as so many people so glibly and loudly assume.

As if on cue, Judge Kavanaugh, could politely point out now that, of course, it would be inappropriate for him to express a judgment on a bill currently before the Congress, with a lively point of controversy, on the very meaning of Roe v. Wade. But this is a two-step maneuver, and Kavanaugh would be set up now for that second step: He merely points out now, in case anyone might not have noticed, that he could not comment on any of the other bills pending in Congress or the states, whether on heartbeats or fetal pain, without encouraging or discouraging the legislation — and the litigation — he might be asked to judge. End of Conversation. On Abortion and Confirmation. Now, and for any of the hearings yet to come.


And yet, the planets are so lining up this season that still another move, with deep political meaning, suddenly comes into view. Or it would if the Republicans on the Judiciary Committee did something unusual and summoned a bit of strategic sense. No one can accuse the Republicans on that committee of showing a high profile of imagination and nerve over the last seven appointments to the Supreme Court. The senators have rarely coordinated among themselves in doing much more than arranging their wagons in a circle to protect their nominee. They put their heads down, defend their nominee, give him some respite from the persistent needling of the Democrats, and help him just slog through.

Why not use the hearings to bring out the tension between Democrats in the Senate and the rest of the party on that bill now pending in the Senate — the bill to protect the children who survive abortions?

But even the Republicans are aware that the nomination this time plays into elections in the fall, especially with the hazards facing Democrats running in states carried by Trump. There is a vague sense that a vote against Brett Kavanaugh would hurt those candidates with Trump voters, but one cannot exactly explain why. It can’t be because Kavanaugh himself is so appealing that opposition to him seems churlish. The nomination becomes important mainly as voters see this as a chance to pull the emergency cord, to jolt this nonstop engine of the Court in stoking the “culture wars.” As the political parties responded to this new choreography, the Democrats became “the party of the courts”: They would come to depend on the courts to impose as law the parts of the liberal agenda that they would not campaign for or defend until they were given the stamp of approval by Supreme Court. (Vide: same-sex marriage, which Obama and Hillary Clinton opposed until the Court was ready to impose it.)

But if that’s the case, why not use the hearings to bring out the tension between Democrats in the Senate and the rest of the party on that bill now pending in the Senate — the bill to protect the children who survive abortions? The Democrats on the Judiciary Committee can be counted on to pound on the issue of abortion at least for the first full round of questioning. But this time the Republicans on the Committee can answer back in a rolling fusillade of their own. The Democrats will find different ways of putting the question about Roe v Wade, and Kavanaugh will keep annoying them by telling them no more than that Roe v Wade is a precedent that commands respect. But on their own side, the Republicans can find different ways to keep raising the question of whether the views of President Obama and the Democrats in the House are really to be taken seriously now — that the right to abortion may indeed entail the right to kill a child born alive.

The Republicans would be free to keep wondering aloud as to where their Democratic colleagues on the panel stand on that question, for, after all, they are about to vote on that bill for the Survivors of Abortion.    The Republicans could twit the Democrats over the asymmetry here: The Democrats want Judge Kavanagh to pronounce on cases that have not yet appeared, and yet they will not reveal their own understanding of Roe v. Wade by saying how they will vote on this bill slated to come before them this fall for a vote. They ask how Judge Kavanaugh stands on Roe v. Wade, and yet they will not say how they will vote on a measure that calls into serious question the very meaning of Roe, the case they treat now in these hearings as iconic.

My own hunch is that Democrats will find it hard not to take the bait — not to answer back when they are challenged. That’s especially the case because they fancy themselves as far smarter than people on the other side. But the political tension now has thickened: They will either have to detach themselves sharply from President Obama and the bulk of their party or they will have to affirm a position on abortion that they could not possibly defend back home in the red states — or even some of the blue states. Which is why this question, sharpened in this season — sharpened by the hearings and the pending vote — may have a wider reach in the elections.

For some reason, Republicans have long been hesitant to pull off political plays that have the effect of deepening tensions among the Democrats, even though it will strain their adversaries and divert them from other mischiefs. That is not a point of etiquette that has ever been shared by the Democrats in our day. And yet, why should the Democrats be spared this wholesome tension, which would be good for their character, and bring no small pleasure to the rest of us? And yes, it does the service also of breaking out to the public the news that should have been heard long ago.

No more than 24–25 percent of the public, in surveys over the years, have shown a willingness to accept abortion throughout the entire length of the pregnancy, for any reason at all. What most people in the public still do not know is that the “right to abortion” established in Roe, and its companion case of Doe v Bolton, did indeed extend through the entire length of the pregnancy — and it did not find its limit, as we have learned, even when the child came out alive. That is not a position that Democrats will be ready to defend in front of the television cameras and a national audience. The Republicans on the Judiciary Committee, and their nominee, have it in their hands now to dispel that fog of 45 years with the gentlest of moves. The Republicans can challenge their Democratic colleagues to say whether they would stand with President Obama and the Democrats: Would they now truly defend a right to abortion that extends beyond the pregnancy itself? If the Democrats discover now that, whenever they raise the question of Roe v. Wade, they will be compelled to defend the right to kill even the child who survives, we will find that the Democrats, after 45 years, have finally lost their appetite for this issue.

The right to abortion may finally become, for them, the forbidden fruit.

At a moment of exasperation the late Casey Stengel said of the new team he inherited, “Doesn’t anyone here know how to play this game?” It’s about time that the Republicans got up to their game.

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Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College, the founder of the James Wilson Institute on Natural Rights & the American Founding, and the architect of the Born-Alive Infants Protection Acts.


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