WASHINGTON — As a law professor at the University of Notre Dame, Amy Coney Barrett marked the 40th anniversary of the Roe v. Wade decision in 2013 with a presentation that included specific wording about the decision used by other conservative jurists.
Barrett, now a Circuit Court judge on President Donald Trump’s short list of potential Supreme Court nominees, spoke about her own belief that life begins at conception. She also said the framework of Roe had “essentially permitted abortion on demand” and “recognizes no state interest in the life of a fetus,” according to news accounts including an article in Notre Dame magazine in 2013.
Abortion rights supporters call that “code,” saying it is commonly used by activists and jurists who either want to overturn the landmark ruling granting women the right to terminate pregnancies or to allow so many restrictions it is rendered irrelevant.
In the past, such rhetoric may not have been enough to sink a nomination.
But the current opening is to replace retiring Justice Anthony Kennedy, who has voted to uphold Roe in the past. If Trump makes good on his promise to nominate “pro-life” judges to the court, he or she could become the fifth vote overturning Roe, making the stakes higher for supporters of abortion rights.
With Arizona Republican Sen. John McCain battling cancer at home, the narrow 51-49 vote margin in the Senate means another single GOP senator could torpedo Trump’s pick, assuming Democrats remain united in opposition.
Sen. Susan Collins, R-Maine, has repeatedly said she will not support any nominee who’s “demonstrated hostility to Roe v. Wade.”
Yet it’s unclear what, exactly, would meet that definition, in large part because of the “code.”
Collins voted to confirm both Chief Justice John Roberts, who’d previously concluded in a brief that Roe was “wrongly decided,” and Neil Gorsuch, who has used a great deal of language understood by pro-life leaders as signaling his support for their cause. During the last confirmation process, Collins said she was confident Gorsuch would not overturn Roe because he had assured her of his respect for “precedence.”
Despite that assurance, anti-abortion advocates expect both Roberts and Gorsuch to be reliable votes to overturn Roe should it come before the high court.
Trump says he won’t ask his next nominee specifically about the Roe decision. But experts who’ve followed the anti-abortion rights community says that isn't necessary since phrases like “abortion on demand” are among a handful widely understood to be a signal for their views on Roe.
For example, in its 2018 “State of Abortion in the United States” report, the National Right to Life Committee summarized the implications of Roe by explaining that the court “effectively legalized abortion on demand throughout the full nine months of pregnancy.” Several times the report likened Roe to “taxpayer funded abortion on demand.”
The Susan B. Anthony List, which helps elect candidates who oppose abortion to office, uses the same language and arguments, including in January when it was advocating for a bill — later rejected by the Senate — banning most abortions after 20 weeks of pregnancy.
“This has been code,” said Elizabeth Toledo, a crisis communications consultant to Planned Parenthood who has studied the pro-life messaging campaign for years.
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Toledo said that when a jurist uses the “abortion on demand” phrase, “it would mean, at a minimum, there would be significant revisions to Roe or that Roe would be considered so flawed it’s not relevant.”
She added, “If you believe what we’re currently doing is ‘abortion on demand’ then you basically don’t believe in exceptions for health of the mother.”
While judicial nominees tend to steer clear of expressing a firm view on Roe, their use of coded language will send a signal on where they stand, experts say.
Kathleen Hall Jamieson, director of the Annenberg Public Policy Center at the University of Pennsylvania, said the better predictor of whether jurists are likely to overturn Roe is when they describe themselves as “strict constitutionalists.”
“When someone says that they are going to literally apply the Constitution and not find rights that aren’t explicitly in there they are, ordinarily, critiquing Roe v. Wade,” she said. Even jurists who liken Roe to “abortion on demand” could nevertheless agree to uphold it because it is long-held precedent, she said. The same is not true for avid constitutionalists.
“They don’t think there’s anything in the Constitution on this matter that would interrupt the power of the state” and that “many health care issues, if this is health care, are decided by the state,” agreed Toledo.
The president has reportedly narrowed his list of potential nominees to three: Barrett, Judge Raymond Kethledge of the 6th Circuit Court of Appeals and Judge Brett Kavanaugh of the D.C. Circuit.
Of the three, Barrett isn’t the only one who’s used what abortion rights advocates see as “coded” language.
Last fall, Kavanaugh wrote a decision siding with Trump administration lawyers to block a migrant teenager in Texas from being released from custody to receive an abortion. The full appeals court intervened to overturn his ruling, and Kavanaugh responded by criticizing his colleagues for creating a “new right for unlawful immigrant minors in U.S. government detention to obtain abortion on demand.”
The debate over “abortion on demand” was “born out of the fight for abortion rights and has been a rallying cry for the anti’s for a long, long time,” said Elizabeth Nash, who analyzes state-level reproductive policy and judicial action at the Guttmacher Institute. Prior to Roe, not only were there state bans, in some states women had to appeal to “hospital committees” for approval to get an abortion.
Separately, in an October 2013 lecture, Kavanaugh opined on the meaning of “constitutionalist,” concluding that it’s important for judges “of all stripes” on the Supreme Court and D.C. Circuit to “pay close attention to the precise words of the constitutional text,” adding for emphasis: “In separation-of-powers cases, it turns out that text matters — the precise text.”
Barrett, in addition to the speech she gave marking Roe’s anniversary, signed a letter with activists from organizations including Susan B. Anthony List, March for Life, the Family Research Council, Heartbeat International and Priests for Life recognizing "life from conception."
A review of Kethledge’s writings didn’t show the use of this language.
GOP leaders on Capitol Hill are making clear that Democrats will not get a straight answer when it comes to Roe.
This week, Senate Majority Leader Mitch McConnell’s office sent out an email citing Judge Ruth Bader Ginsburg from her own 1993 confirmation hearing in which she said: “A judge should not make public comment on the merits of a matter pending or impending in any court.”
But Ginsburg also gave an unequivocal defense of Roe, which is not currently before the court.
In 1987, the Senate rejected Ronald Reagan’s nomination of Robert Bork amid strong opposition from civil and women’s rights groups. Since then, “the consultant community developed the talent to make sure any nominee would be able to deflect any question,” said Jamieson.
The issue of abortion rights will come before the high court again, perhaps soon. In 2017, there were 63 abortion restrictions enacted at the state level and 21 so far this year, including a six-week abortion ban in Iowa, the nation’s most restrictive.
“Part of what we are seeing is an effort by abortion opponents at the state level that do result in legal challenges, with the expectation that the Supreme Court is changing and could uphold those restrictions,” said Nash.
And evangelical advisers closest to the White House have already telegraphed their expectations.
Johnnie Moore, a Southern Baptist minister who co-chaired Trump’s evangelical advisory board during the 2016 campaign, told The Associated Press there is “a high level of confidence within the community that overturning Roe is actually, finally possible.”
Tony Perkins, president of the conservative Family Research Council, told Fox News that his group will be looking for “constitutionalists,” or an “originalist” who will “rule on the right to life.”
And Perkins said Trump should embrace Democratic attempts to make the confirmation fight over Roe. “If I were the president, I would say game on, I’m going to pick someone who is beyond reproach,” he said, citing Barrett as an example.
“I think this ultimately goes back to the states,” Perkins predicted.