Trump walks abortion tightrope on SCOTUS pick

In 2016, President Donald Trump vowed to appoint Supreme Court justices who would “automatically” overturn Roe v. Wade. Now, the White House is insisting there is no such abortion litmus test for Ruth Bader Ginsburg’s replacement.

The change in tone reflects the tightrope Trump is currently walking on abortion with conservatives — and especially religious conservatives — ahead of the November election. Trump needs to both nod to concerns of powerful religious groups that have spent years trying to overturn Roe, the 1973 Supreme Court decision that cemented legal abortion, while not turning off the sizable faction of more moderate religious voters and Republicans who support legal abortion.

Trump did both this week. For the more moderate crowd, senior White House officials were insisting the president wouldn’t press Supreme Court candidates for their thoughts on Roe. But at the same time, Trump was catering to the anti-abortion crowd, speaking about potential nominees with Marjorie Dannenfelser, president of Susan B. Anthony List, a top anti-abortion group. He also appeared virtually at the National Catholic Prayer Breakfast, promising to sign an executive order requiring medical care be given to infants who are born alive after failed abortion attempts.

It’s a balancing act critical to Trump’s reelection this fall. While the president’s aides know they must keep abortion-focused conservatives from slipping away, there’s concern that foregrounding the issue risks turning off swing voters and galvanizing progressive activists. Trump’s supporters warn Democrats are trying to do just that by linking abortion rights to the current Supreme Court battle.

“The left and Democrats want to talk about Roe, and I think it’s an attempt to make it about issues specific for the liberal base rather than talk about the qualifications of whomever the nominee is,” said Ralph Reed, a top Trump surrogate who leads the Faith and Freedom Coalition, a social conservative group.

Trump will announce his Supreme Court pick on Saturday at the White House. Amy Coney Barrett, a judge on the Chicago-based 7th U.S. Circuit Court of Appeals and devout Catholic, is seen as the leading candidate. She visited the White House on Monday and Tuesday to meet with Trump, according to one Republican close to the White House. Barbara Lagoa, a Catholic and Cuban American from the must-win state of Florida, is seen as another top contender.

Neither woman has given explicit answers on the legality of abortion. But multiple people familiar with the process said that to make Trump’s short list means their record and judicial philosophy has been carefully scrutinized with an eye toward how they could vote on cases important to conservatives.

Once the nominee gets in front of the Senate, Democrats are likely to ask questions about abortion, as they did during the confirmation hearings for Justices Neil Gorsuch and Brett Kavanaugh. In his hearing, Gorsuch said Roe remains “the law of the land,” while Kavanaugh told senators he recognized “the importance of the precedent set forth in Roe v. Wade.”

“The forces that drive Trump’s short list operate with a clear litmus test: ending Roe,” said Amanda Thayer, a spokesperson at NARAL Pro-Choice America, a leading advocacy group for legal abortion.

Yet White House aides have consistently tried to downplay the role abortion rights will play in the confirmation process.

At a briefing on Tuesday, White House press secretary Kayleigh McEnany said the president and White House “would not ask a judge to prejudge a case,” when asked about a nominee’s potential to help overturn Roe v. Wade. The president’s chief of staff, Mark Meadows, similarly said weighing in on Roe with potential nominees is “not something he would do or should do.” Another person familiar with the process said it was unlikely a candidate’s position on abortion would come up in an interview. The person said in the past, Trump has focused on the potential nominee’s background and judicial philosophy.

Gorsuch told the Senate Judiciary Committee during his 2017 hearing the president did not ask him to overturn Roe, adding he would have “walked out the door” if Trump had done so.

One Republican close to the White House claimed the administration was simply following conservative principles by downplaying a justice’s potential decision on one particular issue — whether it’s abortion, civil rights or gun rights. The person argued conservatives prefer the political process, not the courts, to make such decisions.

Notably, however, conservative legal groups have focused on using the court system to challenge laws on all of those issues in recent years. They have also emphasized filling the judicial system with reliably conservative judges — a subject Trump regularly brags about.

And despite the reluctance of some aides to make abortion a hot-button issue, social conservatives view it as one of the driving forces behind whomever Trump picks.

Many Republicans feel comfortable openly saying they want a judge who will curtail abortion rights. Sen. Tom Cotton of Arkansas — who was included on a list of possible Supreme Court picks Trump released this month — tweeted after he appeared on the list: “It’s time for Roe v. Wade to go.” And Sen. Josh Hawley of Missouri, a member of the Senate committee that will first vote on Trump’s Supreme Court pick, said he would only support a nominee who publicly states Roe v. Wade had been “wrongly decided.”

Social conservatives want the same type of promise, viewing abortion restrictions as one of the top issues motivating Republican voters this fall.

“The conventional wisdom among the right is to not talk explicitly about politically charged issues coming before the court, but the politics on abortion have changed over the years,” said one conservative strategist who is involved in the outside groups pushing the White House to confirm a justice before the election.

Trump and his aides have spent years showing public affinity for the country’s staunchest anti-abortion groups.

In addition to Trump’s recent appearance at the National Catholic Prayer Breakfast, the president appeared at the anti-abortion March for Life in Washington — a first for a sitting president.

“Unborn children have never had a stronger defender in the White House,” Trump said to cheers at the January 2020 march.

And in the current Supreme Court confirmation battle, aides have consulted a variety of right-leaning groups — not just Susan B. Anthony List — that will bolster and support Trump’s nominee, including the Judicial Crisis Network, Federalist Society, Heritage Foundation and Club for Growth.

Barrett is the top choice for anti-abortion groups. They argue she has the most established record on abortion among the potential picks and note the White House counsel already vetted her previously during the search that ultimately led to Kavanaugh’s nomination.

Barrett has discussed hypothetical scenarios involving Roe, and has said she would follow the Supreme Court precedent on abortion.

"I don't think that abortion, or the right to abortion would change,” Barrett said at Jacksonville University in 2016. “I think some of the restrictions would change.”

Choosing Barrett would give Trump a chance to excite the evangelicals, Catholics and social conservatives who were drawn to Trump’s 2016 promise to appoint anti-abortion Supreme Court justices. In August, 40 percent of registered voters cited abortion as one of the “important” issues in the election, according to the Pew Research Center.

The issue will likely be brought to the Supreme Court again in the coming sessions as anti-abortion activists and some states try to tighten restrictions on abortion. During the last session, Chief Justice John Roberts joined with liberals on the court to strike down a Louisiana law that would have required abortion providers to have admitting privileges to a nearby hospital, which critics said could have forced all but one of the state’s abortion providers to close. But the power of Roberts’ swing vote would be diminished by replacing Ginsburg’s vote with a reliably conservative vote.

Mallory Quigley, vice president of communications at Susan B. Anthony List, agreed that this confirmation battle is “a turning point.”

“For almost five decades,” she said, “the pro-abortion lobby has run to the courts because that is where they run to get favorable decisions.”

There is a risk to Republicans going all-in on the issue, though. Opinions about abortion are not uniform among conservatives, even in religious circles. While only 20 percent of white evangelical Protestants favor legal abortion, Catholics are roughly split on the issue, and people who identify as “moderate Republicans” are 57 percent in favor of legal abortion, according to recent polling from the Pew Research Center. Overall, 61 percent of Americans say abortion should be legal in most or all cases, Pew found.

The issue is also energizing abortion rights activists ahead of the election. NARAL reported its fundraising is up 1,800 percent compared with this time last year, and the group has seen double its usual turnout at virtual events. Planned Parenthood has announced a six-figure ad buy about protecting “Ginsburg’s legacy.”

Yet anti-abortion activists are also organizing around the Supreme Court pick. Susan B. Anthony List plans to spend seven figures to buy ads and launch a grassroots activism campaign focused on the Surpreme Court and late-term abortion. Penny Nance, a member of Women for Trump and CEO of Concerned Women for America, said her organization is most excited about potentially having a conservative woman on the court and is planning to launch a bus tour — with the bus wrapped in pink with the Supreme Court nominee’s name across the side — to drum up excitement next week.

“There’s always a component of the [Republican] party that’s hesitant to take the issue of life head-on,” said Nance. “We’re eager for a woman who has our view of the constitution sit before the court and weigh in.”