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.”
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, 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.”
But the debate about what Gorsuch would do, or not do, as a justice may also serve to highlight the increasingly prevalent argument among some abortion foes who say that overturning Roe is not necessarily the determining factor in the success or failure of the anti-abortion movement.
“It is possible to make significant progress on the pro-life front, and to give legislatures significant leeway to reasonably regulate abortion, without formally ‘overruling’ Roe and Casey,” said Richard Garnett, a law and political science professor at the University of Notre Dame.
“This is why the common complaint that Republican presidents and judicial nominees haven’t made any difference when it comes to the pro-life cause is misguided,” Garnett wrote in an email.
“In fact, there is significantly more reasonable regulation of abortion than there used to be and this is, in part, because Republican-appointees have been more willing, even under Casey, to uphold such regulations.”
There is great confidence among abortion opponents – and anxiety among abortion rights supporters – that Gorsuch would back many of the growing number of efforts in some states to limit access to abortion, or to pass laws on fetal pain and mandatory ultrasounds that would curtail legal abortions.
Gorsuch’s record also indicates he would most certainly support broad exemptions for religious believers and institutions that disagree with abortion.
That’s a big reason why Marjorie Dannenfelser, president of the Susan B. Anthony List and a prominent anti-abortion activist who led Trump’s Pro-Life Coalition during the campaign, said she is not concerned by Gorsuch’s testimony or how he might rule on Roe.
“I think that Roe can be, and already has been, beaten back in a variety of ways,” said Dannenfelser, who was converted from a Trump critic to a campaigner last summer by the candidate’s pledges on abortion. “It is more of a slow erosion (of abortion rights) than one nuclear blast on one day.”
If Gorsuch were to vote against restrictions such as proposed laws that would prohibit abortion after scientists determine that a fetus can feel pain – a sharply debated measure that proponents say would effectively end abortions after 20 weeks gestation – “we would be truly devastated,” she said.
But she doesn’t expect that to happen because Gorsuch is the type of jurist conservatives are looking for. However Gorsuch rules, Dannenfelser said she would be at peace with backing Trump over Hillary Clinton.
“Given the two, I would still make the same decision,” she said. “He (Gorsuch) is light-years more likely to vote in a way that would please us than a Hillary nominee.”