There is no shortage of controversy over the Kavanaugh confirmation hearings — from the accusations of Dr. Blasey Ford to evidence that Kavanaugh lied under oath to the Senate, to Kavanaugh’s contentious opinion that presidents should be shielded from both criminal and civil charges while in office.
But abortion may ultimately be the issue that decides the fate of Trump’s nominee. The abortion rights debate reignited two years ago after Trump’s campaign promise to only nominate judges who would overturn Roe v. Wade. The release of a 2003 email in which Kavanaugh wrote that he was “not sure that all legal scholars refer to Roe as the settled law of the land,” has only exacerbated the issue.
Senate Republicans have a narrow margin of 51 votes to confirm Kavanaugh, meaning that Democrats can prevent Kavanaugh’s confirmation if they peel off just two Republicans. Unsurprisingly, pro-choice Republican Senators Lisa Murkowski and Susan Collins have become central targets for influence from both sides of the aisle.
A history lesson on the rise of the religious right might be required to understand the GOP’s battle to roll back abortion rights, especially given that Roe v. Wade was less controversial after its passing in 1973 than it is today. In fact, the Republican party did not take up anti-abortion as a central platform issue until 1976.
In 2011, Cambridge’s Journal of Policy History ran an article entitled “The GOP’s Abortion Strategy: Why Pro-Choice Republicans Became Pro-Life in the 1970s” in which Daniel K. Williams examines the history of the pro-life conservative movement. Williams’s research shows that at the 1974 Republican National Convention, fewer than 40 percent of delegates considered themselves to be pro-life.
However, he writes, the “GOP adopted a platform in 1976 that promised an anti-abortion constitutional amendment” as a political gambit to secure the vote of traditionally Democratic Catholic voters. The anti-abortion platform allowed Republicans to establish a large, reliable base of religiously motivated voters.
The move shifted the entire party in the direction of social conservatism, ultimately ousting most pro-choice Republicans. By 2009, only 26 percent of Republican voters were pro-choice.
Anti-abortion voters continue to be a vital demographic for the GOP, especially among white evangelicals, which provides a good motivation for many Republicans to campaign heavily against abortion. The Pew Research Center indicates that 70 percent of white evangelical Protestants believe abortion should be illegal, and that Trump secured 81 percent of this demographic in 2016.
Moreover, anti-abortion politics have only become more fervent within the last decade. New York Magazine reported that 33 states have enacted anti-abortion restrictions since 2010, while only 17 have not. The Guttmacher Institute’s research shows that 288 new restrictions on abortion were passed between 2011 and 2015—a startling 25 percent of all abortion restrictions passed since 1973.
Those statistics seem even more remarkable when put into context with actual public opinion on abortion. The Wall Street Journal just released new reporting which shows that a record-high of 71 percent of American voters oppose overturning Roe v. Wade.
Which begs the question: Why are so many conservative members of the executive, judicial and legislative branches trying to overturn a ruling that has been settled for 45 years and is supported by over two-thirds of American voters?
Republicans have arguably had a bad track record with popular opinion in the last two decades. Both George W. Bush (2000) and Trump (2016) lost the popular vote, Neil Gorsuch was significantly less popular than SCOTUS nominees from the last decade, and Trump has the lowest presidential approval rating in history. What’s more, Kavanaugh will be the least popular Supreme Court justice in history if confirmed. Conservative outlet Fox News reported this week that 50 percent of Americans believe he should not be confirmed (though he still has 82 percent of Republican voters’ support). The only nominee as unpopular as him, Robert Bork, was rejected by Congress.
Though Kavanaugh’s numbers continue to dive, Republicans in the Senate keep pushing forward with his confirmation, determined to seat him before the midterm elections, when they might lose Congressional control. The possibility that Kavanaugh could be confirmed as the least popular justice in history, and the likelihood that any of Trump’s potential nominees will support overturning Roe v. Wade, seems to present an unavoidable question:
Does popular consensus actually matter in American politics today?
Perhaps manipulation of voters is of greater concern to our politicians than representation of voters. The Supreme Court won’t be protecting the core beliefs of the American public if it overturns a hugely popular ruling with a 45-year precedent; it’ll be protecting the prejudices of the Republican party.
And, as they say, the slope is awfully slippery. If settled law like Roe can be overturned, what other civil rights are at risk? Will we also see the Equal Marriage Act of 2015 imperiled? Should we worry about the status of affirmative action laws?
Who really controls a government that has no respect for representing constituencies accurately, or maintaining the integrity of constitutional legal precedent?
Certainly not the citizenry. We need to consider the possibility that a Kavanaugh confirmation is the last nail in the coffin of our so-called representative government. Call it fascism, oligarchy or totalitarianism — whatever the United States is becoming, it is not a democracy.