WASHINGTON — If moderate Democratic senators won’t hold the party’s line on abortion, the liberal base will abandon them this fall, abortion-rights leaders say.
Ideological advocates on both sides say Brett Kavanaugh, President Donald Trump’s nominee to replace retiring Justice Anthony Kennedy, could put the landmark 1973 case Roe V. Wade in jeopardy if confirmed by the Senate this fall.
“There’s never been a clearer choice for the Democratic Party in my lifetime than to vote ‘no’ on this nomination,” NARAL Pro-Choice President Ilyse Hogue told Beyond the Bubble Tuesday.
“If we are going to have the turnout that we need in November… that’s very dependent on Democrats being seen as fighting for our rights on this nomination,” added Hogue.
Democrats need 51 votes to stop Kavanaugh’s confirmation in the Senate. Even if all Senate Democrats united against the nomination, they would still need help from at least two Republicans.
In addition to the two GOP women who have sided with Democrats on protecting abortion rights in the past —Sens. Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska — Hogue said her group will also target Republicans with competitive races on the horizon.
“We’re looking at a really deep push in states like Nevada and Colorado,” said Hogue. “[Sen.] Dean Heller, R-Nev., is going to have to stand by his vote in November in a hugely pro-choice state, and [Sen.] Cory Gardner, R-Colo., [is] up in 2020.”
Heller is the only Senate Republican seeking re-election this year in a state Democrat Hillary Clinton carried in 2016. Gardner chairs the GOP’s Senate campaign arm. Both have praised Kavanaugh since Trump's selection was made this week.
Abortion rights groups led the left’s effort to oppose Trump’s first Supreme Court nominee, Neil Gorsuch. Gorsuch was confirmed in April of last year, with the help of three Senate Democrats who are up for re-election in states Trump won.
Hogue said Kavanaugh will be different for her party, which has struggled to use the courts as a political motivator in recent years. She pointed to a June survey from the non-partisan Kaiser Family Foundation that found 73 percent of independent voters say they want to keep Roe v. Wade in place.
“[B]locking [Kavanaugh] is actually the moderate thing to do,” said Hogue. Of the red-state Democrats who backed Gorsuch last year, she added: “It won’t matter what groups like ours say… voters are in the drivers’ seat.”
The reality of overturning Roe v. Wade could take more than the confirmation of another conservative justice, Margaret Russell, a law professor at Santa Clara University in California, told Beyond the Bubble.
“One of the factors that is looked at [in overturning a case] is whether there’s been a reliance of the public on the earlier ruling,” said Russell. “A whole generation of women have grown up… with this as an understood right that they’ve had.”
Still, said Russell, other cases are already working their way through the courts that could chip away at the case’s protections for abortion rights.
"Even if the case to overthrow Roe isn’t currently in the court, you can be sure that there is a road map that’s being planned by conservative groups,” said Russell. She pointed to cases the court has sided with abortion rights groups on in recent years: spousal signature requirements, waiting periods and parental permission for minors.
"The kind of cases that will come up will probably be like that," said Russell.
The court has yet to decide which cases it will take up in its next session. Justices determine the court's docket together, after Kennedy's replacement is confirmed.
“Abortion is really just one of many issues, and the overall desire of remaking the court of groups like the Federalist Society… [is] to chip away at the administrative state,” said Russell. “Practically speaking, that means that business interests will become much more paramount."
McClatchy’s Beyond the Bubble show is produced by Jordan-Marie Smith and Davin Coburn. Alex Roarty, a national political correspondent for McClatchy, and Andrea Drusch, Washington correspondent for the Fort Worth Star-Telegram, recorded this episode at McClatchy’s Washington Bureau, July 10, 2018.