Many supporters of Joe Biden, and even some of his opponents, think that the Supreme Court vacancy will help doom the (already struggling) campaign of Donald Trump in November. Their reasoning rests in part on the assumption that it helps Democrats to campaign on keeping Roe v. Wade, which usually gets high approval ratings.
“The Kaiser Family Foundation polled Americans this year and found that 69 percent opposed the overturning of Roe; only 29 percent support its reversal,” Joe Scarborough writes in the Washington Post. “That is a political gantlet that only this president would charge through weeks before an election.”
I’m not so sure campaigning on Roe helps the Democrats. Yes, it polls well. But a paring back of Roe is more likely than its simply being overturned, and pollsters almost never state in their questions what overturning it means — that it would simply return to the states the ability to pass abortion laws, many of which are popular and not allowed under the current Roe regime.
In the third and final presidential debate on October 19, 2016, Donald Trump was asked by the moderator, Chris Wallace of Fox News, about overturning Roe.
With 72 million Americans watching, Trump said that “if we put another two or perhaps three justices on” the Supreme Court, Roe will be overturned “automatically” and policy “will go back to the states and the states will then make a determination.”
Hillary Clinton hammered Trump for opposing Roe v. Wade. Trump then pivoted to hit Clinton for supporting late-term abortion.
Trump said that Clinton thinks there is a right to “rip the baby out of the womb of the mother just prior to the birth of the baby.”
“Now, you can say that that is okay and Hillary can say that that is okay, but it’s not okay with me,” he added.
Perhaps the Democratic message on Roe will help the party more following a Ginsburg vacancy than it did during the Scalia vacancy. But Biden has plenty of vulnerabilities of his own on abortion, including his flip-flop in support of unlimited taxpayer-funding of elective abortion for Medicaid recipients.
Solid majorities of Americans oppose taxpayer-funding of abortion and late-term abortion. Biden has not to my knowledge been asked by any journalist about his views on late-term abortion during the 2020 campaign, but he could be pressed on the issue during the debates.
Biden said in 1997 that he wanted to “ban all post-viability abortions,” but now speaks of his intention to “codify” Roe. When congressional Democrats speak of codifying Roe, they mean enacting the Women’s Health Protection Act, a federal law that would invalidate almost all state laws on abortion, including bans on late-term abortion lacking exceptions on the basis of emotional or mental health. The text of the bill, which is co-sponsored by Kamala Harris, explicitly instructs the courts to “liberally” interpret the legislation. Moreover, the bill “doesn’t distinguish” between physical and mental health, as its chief sponsor Senator Richard Blumenthal of Connecticut has said. The act would therefore cause laws such as Pennsylvania’s 24-week limit — which includes an exception only for a physical health risk to the mother — to be invalidated. Under Pennsylvania’s Abortion Control Act, the notorious abortionist Kermit Gosnell was convicted in 2013 for killing 21 infants in utero (in addition to his conviction for murdering three infants with scissors after they had been born) later than 24 weeks into pregnancy.
Trump was already trailing Biden by seven points in the presidential race before the death of Justice Ginsburg, so the odds were already against his reelection. But the Supreme Court vacancy does make the race more volatile and unpredictable.
What we do know is that Trump’s statement that Roe would be “automatically” overturned didn’t hurt him in 2016. Three weeks after sparring on abortion during the final presidential debate, he defeated Hillary Clinton 306 to 232 in the Electoral College.