In the game that’s being played in Washington over Brett Kavanaugh’s nomination to replace swing-justice Anthony Kennedy, his proponents are careful never to admit that he’s a very likely fifth vote to overturn or significantly modify Roe v. Wade, or even that they care whether he’d do so if given the opportunity. Perhaps the biggest howler was uttered by the devoted opponent of legalized abortion who may have had the most decisive influence over the choice of Kavanaugh, former Federalist Society executive director and chief SCOTUS-vetter for Trump, Leonard Leo:
“We’ve been talking about this for 36 years, going all the way back to the nomination of Sandra O’Connor,” he said. “And after that 36-year period, we only have a single individual on the court who has expressly said he would overturn Roe. So I think it’s a bit of a scare tactic and rank speculation more than anything else.”
What makes that statement hilarious is that the entire vetting process over which Leo presides was transparently created in order to prevent precisely the sort of “betrayal” on abortion jurisprudence that Republican SCOTUS appointees like O’Conner and Kennedy represented. If Kavanaugh turns out to emulate Kennedy rather than his “first judicial hero,” William Rehnquist, a dissenter in Roe, then Leo and Trump will have both failed.
But this game isn’t much being played among the Kavanaugh supporters with the most visceral stake in the question of whether or where he would take the Court on the now-threatened constitutional right to an abortion: the grassroots activists who labor every day to eliminate it. As the New York Times reports after talking to right-to-life activists in Indiana, they’re behaving like the culmination of all their dreams is now in sight:
It was exactly a week after President Trump had named Judge Brett M. Kavanaugh to be his nominee for the Supreme Court, and the group was joking that they had a new sport: Extreme Canvassing.
In short surveys, the teams ask voters about their hopes for Judge Kavanaugh’s confirmation and their opposition to abortion funding. Canvassers have knocked at nearly 1.2 million homes nationwide in recent months, and by November, they are slated to reach their goal of 2 million.
“Whenever I’m feeling tired, I say, ‘I’m doing it for the babies,’” said Kaiti Shannon, 19, as she consulted a mobile app to determine which porch with wind chimes to approach.
Indeed, the sense you get from both leaders and followers of the right-to-life cause is that they are engaged in a top-down and bottom-up strategy that will generate a state challenge to Roe that the Court will finally entertain:
[A]nti-abortion activists in Indiana hope that one of their laws, which gave a fetus nondiscrimination protections but was struck down in federal appeals court earlier this year, may be the one to challenge Roe v. Wade — if their attorney general appeals to the Supreme Court in the months ahead. But there are dozens of other cases working their way through the courts nationwide, including one involving an Iowa law banning almost all abortions after a fetal heartbeat is detected, and a Mississippi law banning abortion after 15 weeks. Seventeen states have laws that ban abortion after about 20 weeks.
These efforts reflect “a long-term and sophisticated strategy” to gain the upper hand, says Ilyse Hogue, president of the abortion rights organization NARAL. “They’ve been stacking the courts, taking over state legislatures,” she said in an interview, referring to anti-abortion groups. “This has been their plan. This is no doubt the day they have been waiting for.”
If Kavanaugh’s views on this issue are actually as mysterious as some of his GOP backers claim, you’d think right-to-life folk would be focused on securing assurances from him on this issue rather than fighting for his confirmation. But they’re not, as the Washington Examiner reports:
The anti-abortion group Susan B. Anthony List rolled out digital ads on Thursday aimed at pressuring six red-state Democrats to support Brett Kavanaugh’s nomination to the Supreme Court.
And that’s just the tip of the iceberg. The SBA List is responsible for the door-to-door canvassers the Times talked to in Indiana.
Leaders of the anti-abortion movement believe they are closer than they have been in 50 years to achieving their goals, and local efforts like these are at the heart of their plan to get there. They see this political moment — a White House that advances anti-abortion priorities, a Supreme Court poised to tilt in a conservative direction, and a possible third Supreme Court seat to fill while Mr. Trump is still in office — as a rare opportunity, and one they have worked for years to create.
So why all the deception and misdirection? There are two obvious reasons. The first is short-term: Kavanaugh’s confirmation will likely depend on the votes of pro-choice Republican senators Susan Collins and Lisa Murkowski, who need cover in order to put on the party yoke on this vote. The second is more general: Right-to-lifers have long understood that their immediate goal of overturning Roe is unpopular; an estimated two-thirds of Americans oppose it. If their long-term goal of making abortion illegal from sea to shining sea seemed suddenly viable, a backlash would develop that might have all sorts of unfortunate consequences from the point of view of the right-to-life movement and its captive, the GOP. So mum’s the word. But don’t believe it.
