With Justice Kennedy’s retirement, anti-abortion groups see opportunity to overturn Roe v. Wade

June 29, 2018

WASHINGTON — Justice Anthony Kennedy’s retirement announcement this week was an answer to prayers for abortion rights opponents hoping to see the landmark Roe v. Wade decision overturned.

Nebraska Right to Life executive director Julie Schmit-Albin was in Kansas City at the national group’s convention, where she said attendees were fired up about the news.

“Back during the 2016 election, we said Roe v. Wade hangs in the balance because of that — because we knew the next president could have the potential of nominating several future justices,” Schmit-Albin said. “So now we’re in that moment. Thankfully we’re in that moment.”

Schmit-Albin said she expects a hard-fought confirmation battle and said advocates on her side of the issue will do everything they can to help the cause.

And she praised President Donald Trump for his previous release of a list of potential nominees, a list vetted by groups opposed to abortion rights.

“This is the most pro-life president we’ve ever had,” Schmit-Albin said. “We’re in a different era.”

Senate Minority Leader Chuck Schumer, D-N.Y., went straight to the abortion issue in a Thursday floor speech about the nomination.

Schumer said it’s virtually certain that the president’s nominee would support overturning Roe, which would almost immediately lead to a number of states where abortion would be wholly or partially illegal.

“That is against what America wants,” Schumer said. “It is because the president and his hard-right ideological judicial acolytes are way far away from where the American people are, and are trying to create a court that will turn the clock backward in so many ways — Roe at the top of the list.”

Republican senators who describe themselves as abortion opponents were more circumspect about the potential impact of a new justice on Roe, the 1973 Supreme Court decision that recognized a legal right to abortion. In fact, some sought to avoid commenting on it at all.

Shortly after the news broke on Wednesday, Sen. Chuck Grassley, R-Iowa, who is chairman of the Judiciary Committee that will review the nomination, was asked if he wanted a justice who would overturn Roe.

“I want a justice who is going to be very independent of any personal views that they have on anything and are going to respect the Constitution and the rule of law and things of that nature,” he said.

Does that include Roe?

“What we’re talking about is people that are going to look at the facts of the case and apply the law and the Constitution to those facts,” Grassley said.

Asked about the prospect of Roe being overturned, for example, Sen. Deb Fischer, R-Neb., said she had no comment beyond: “I’m just looking for a good nominee who upholds the Constitution.”

Sen. Ben Sasse, R-Neb., is a member of the Senate Judiciary Committee.

Asked for a comment from the senator on the impact on Roe, Sasse spokesman James Wegmann provided a written statement that the senator is looking for someone who understands that the role of a judge is not to make laws but uphold the Constitution.

Sen. Joni Ernst, R-Iowa, told reporters that she didn’t want to speculate on how the nominee would approach particular cases but acknowledged that many groups opposed to abortion are looking for Roe to be overturned.

Asked whether she personally would like to see the decision overturned, Ernst just said that she is against abortion.

“I would love to save as many lives in the United States as possible,” Ernst said.

While Republicans blocked President Barack Obama’s nomination of Merrick Garland in early 2016, they say that was tied to the presidential election and will move forward with a nomination to replace Kennedy even as it comes just before this year’s midterm elections.

That has brought charges of hypocrisy from Democrats, who suggested that Majority Leader Mitch McConnell should wait until after the midterms.

“Time and time again, Leader McConnell justified his unjustifiable blockade of Merrick Garland by claiming the American people should have a voice in deciding the next Supreme Court justice,” Schumer said. “That was in February of an election year. It’s now almost July.

“If the Senate’s constitutional duty to advise and consent is just as important as the president’s right to nominate, which the Constitution says it is, why should a midterm election be any less important than a presidential election?”

All four of the GOP senators from Nebraska and Iowa indicated that they’re comfortable with moving a nomination before the upcoming elections.

Grassley said Schumer was suggesting that the Senate couldn’t hold hearings for Supreme Court nominees every other year, which Grassley said is a “preposterous suggestion.”

“Just like Democrats held a hearing and confirmation for Justice (Elena) Kagan in 2010, in the midst of a midterm election year, we will hold a hearing in the upcoming months for the president’s nominee this year,” Grassley said.

Ernst was asked if American voters should be allowed to choose the Senate they want to confirm Kennedy’s successor in the same way voters were allowed to decide which president picked the successor to Antonin Scalia.

“No, no,” Ernst said. “Because the Senate does not choose the nominee. It is the president that chooses the nominee. So completely different situations. The Senate is the body that will confirm a nominee, but it is the president who makes that choice.”