Unless you have been living under a rock or are dependent on lousy rural broadband for your newsfeed, you have probably noticed that the President intends to nominate a new Supreme Court justice this weekend. And the short list of candidates are either conservative or conservative-er. Those who want to ban abortion altogether are triumphant; surely, with six conservative justices, this will be the death knell for Roe v. Wade, the 1973 ruling that made abortion legal in the United States.
Or will it?
You see, Republican presidents have appointed 13 justices since 1969 and Democratic presidents only three. Moreover, six of the 13 GOP nominees replaced justices appointed by Democrats. So how is abortion still even a thing? Certainly, before now, SCOTUS could have sent the clerks out for Starbucks, gotten their caffeine on and written their majority ruling saying, “Okay everybody, Roe v. Wade is overturned.”
First: The justices recognize their role in shaping and protecting American jurisprudence. Our legal system is set up to be fair and non-political. Supreme Court justices are bound by their interpretation of the law, and not a political party. This has certainly played out with the justices appointed by Republicans. Three justices in particular have had reputations as being terribly conservative but analysis and study have shown them to be divided between conservative and liberal opinion: Rehnquist, Thomas and Roberts. The last two are still serving on the Court.
Chief Justice Roberts in particular was the tiebreaker in upholding the Constitutionality of the Affordable Care Act, to the surprise (consternation?) of many conservatives. He also ruled with the liberals to strike down a Louisiana law seeking to limit access abortion this June. So there is no guarantee that a sixth conservative nominee with always rule with the conservatives.
Second, the Court cannot return to the same case and change its mind. The legal doctrine of stare decisis (“let the decision stand”) means successive justices are reluctant to overturn prior rulings. A number of individual states have passed or are considering passing laws contradicting Roe; if any of these laws are challenged before the Supreme Court and upheld, that could encourage other states to limit access to abortion. However, this is not the same as a federal ban, or overturning the original ruling.
It’s also a valid question whether the Senate will actually be able to pull off nomination hearings before the election. But just as it was for Gorsuch and Kavanaugh, asking nominees, “Do you support overturning Roe v. Wade?” is rather pointless. That precise situation is unlikely to come up. Asking them about their record and their specific rulings is a better use of taxpayers’ time.
And now I get to the heart of the matter. My party has been weaponizing Roe v. Wade since I have been voting. And you know what? It has never been my number one political issue. It’s not the top issue for most Americans. Gallup has been polling this topic since 1975 and only one in five Americans support a complete ban on abortion. That number has not varied by more than three percentage points in 45 years (visit news.gallup.com to see the full data set). But Roe v. Wade has become an easy button for Republicans to win primaries. It’s not only lazy, it’s disingenuous.
There are better fights for the pro-life movement. Four in five Americans support regulation of third-trimester abortion, such as we have in New Mexico. Like 80 percent of my neighbors I can get behind that with enthusiasm. But we deserve better than the melodrama unfolding in the Senate, and voting in the 2020 election will likely reflect that.
Merritt Hamilton Allen is a PR executive and a former Navy officer. She lives amicably with her Democratic husband and Republican mother north of I-40 where they run two head of dog, and two of cat. She can be reached at firstname.lastname@example.org.