In a recent debate for vice presidential candidates, Vice President Mike Pence was asked, “If Roe V. Wade was overturned what would you want Indiana to do? Would you want your home state to ban all abortions?” Pence was given two minutes to answer. He used the first minute to talk about a previous question, unrelated to abortion, and the last minute to defend President Trump’s Supreme Court nominee, Judge Amy Comey Barrett. He never answered the question about Roe being overturned.
When asked a similar question about California, Senator Kamala Harris said she always supported allowing a woman to “make a decision about her own body,” but otherwise avoided the question.
No one questions Pence’s pro-life bona fides (as both a governor and a congressman, Pence has been consistently against abortion) or whether Harris is sufficiently pro-abortion rights (Harris, like the Democratic Party platform, takes an extremist view in support of abortion rights). But Pence’s response provides a clue about why Roe v. Wade remains the law of the land.
In the next question, Pence took a moment to clarify he is “pro-life, and I don’t apologize for it.” But he then adds he would “never presume to judge how Amy Comey Barrett would rule on the Supreme Court of the United States, but we’ll continue to stand strong on the right to life.”
Pence’s admission that he doesn’t know how Barrett would rule is consistent with what President Trump said in his first debate against Vice President Joe Biden. Commenting on the nomination of Judge Barrett, Biden said, “The point is that the president also is opposed to Roe v. Wade. That’s on the ballot as well and the court, in the court, and so that’s also at stake right now.”
Rather than agree that he did indeed want and expect Roe to be overturned, Trump responded, “Why is [Roe] on the ballot? It’s not on the ballot. There’s nothing happening there. You don’t know what her views are.”
How Do You Know a Justice Is Pro-Life?
Trump himself doesn’t know Barrett’s views on abortion or Roe, because he hasn’t asked. On the campaign trail in 2016, Trump promised to nominate only judges who oppose abortion rights. “The justices that I am going to appoint will be pro-life,” he said, adding that overturning Roe “will happen, automatically, in my opinion” if he was elected president, “because I am putting pro-life justices on the court.”
Yet in June the president said he would not ask potential nominees if they opposed abortion rights. White House press secretary Kayleigh McEnany later clarified, “The president has been clear that he would never ask a judge to prejudge a case.”
If you’re new to the pro-life movement you may be thinking, If a president doesn’t directly ask the question, how can they know whether a Supreme Court nominee will overturn Roe? The answer is, they don’t. Neither do the pro-life senators who confirm the nominees. (For the purposes of this article, I’ll use Roe as a stand-in for all SCOTUS precedents on abortion rights.)
During this summer, though, it appeared that ignorance might change. Sen. Josh Hawley, a Republican from Missouri, told The Washington Post in July that he wouldn’t vote for a Supreme Court nominee unless they went “on the record” in speaking out against Roe. “If there is no indication in their record that at any time they have acknowledged that Roe was wrong at the time it was decided,” Hawley said, “then I’m not going to vote for them—and I don’t care who nominates them.”
Hawley’s commendable stance should have inspired the other 50 pro-life senators to make a similar commitment. Instead, Hawley later clarified that he wouldn’t ask Barrett directly. When asked about the president’s comments in the debate, Hawley responded:
I won’t speak for the president. I did watch the debate. I think if memory serves, Joe Biden just said Judge Barrett—who I believe soon will be Justice Barrett—would vote a certain way, would vote to overturn. And the president said, “You don’t know,” which I think is consistent. I mean, I haven’t heard Judge Barrett pledge her vote on any case. She can’t do that.
I hope that no senator on the other side will ask her to pledge her vote one way or another. And I certainly won’t. I think the judge’s record as to her understanding of judicial role and Roe and how Roe fits into that is pretty clear. It certainly fits my threshold.
Is Hawley correct that it’s improper to ask a potential justice how they’d rule on Roe? As with most other issues related to the law, it’s a matter of interpretation. And pro-life politicians have inexplicably interpreted the issue in a way that hurts their cause.
Please, Senators, Don’t Ask Me to Say I’m Against Abortion
The issue is being determined by Canon 3(A)(6) of the Code of Conduct for United States Judges that states, with certain exceptions unrelated to judicial confirmation hearings, a “judge should not make public comment on the merits of a matter pending or impending in any court.” This code of conduct is merely a set of “aspirational rules.” It has no binding set of laws or enforcement mechanism. In a 1990 edition of the Harvard Journal of Law and Public Policy, legal scholar Steven Lubet argued that the code of conduct permits judicial nominees to “explain how they would have decided well-known Supreme Court cases” like Roe, even though an abortion case may well come before that nominee in the future because “pure questions of law, even those likely to be considered by the court, are never ‘impending’” for the purposes of Canon 3(A)(6).
Despite their being no prohibition against asking nominees about Roe, not a single Republican-appointed justice currently serving on the court was required by pro-life politicians to clearly state whether the abortion precedent should be overturned.
Even Justice Thomas, the longest-serving member currently sitting on the bench, dodged the question when he was directly asked by Senator Patrick Leahy, a Democrat from Vermont. In the 29 years since Thomas was confirmed, Republican nominees consistently avoided directly addressing whether they would overturn Roe. In contrast, Democrat-appointed justices have made it clear they would uphold the “right” to abortion. For example, when asked about Roe in her 2009 confirmation hearing, Justice Sotomayor said it was a “settled precedent.” Some Democratic senators have also made it clear that upholding Roe and other abortion precedents is a litmus test for confirmation to the Supreme Court.
Since 1972, Democrats have appointed four justices (Carter had zero nominees, while Clinton and Obama both had two apiece). In comparison, Republicans have appointed 11 justices. Of those appointed by Republicans, four have voted in cases upholding a right to abortion. None of the Democratic-appointed justices has ever supported pro-life rulings. (Sotomayor was originally appointed as a federal judge by George H. W. Bush and appointed to the Supreme Court by Obama.)
Republican-appointed justices have always been a majority on the Supreme Court since Roe. Even now, only three justices serving on the court today were appointed by a Democrat (Breyer, Kagan, and Sotomayor). If Barrett is confirmed, six justices will have been appointed by a Republican. And yet even with Barrett the odds of the court overturning Roe in the next decade are no better than 50/50.
Don’t Ask, Don’t Tell—The Abortion Version
There are many reasons why justices may choose not to oppose abortion after they join the Supreme Court. For example, using data going back to 1937, Oliver Roeder found that Supreme Court justices get more liberal as they get older. But the most likely reason is that they were never opposed to abortion in the first place and pro-life politicians weren’t aware because they never asked.
From 1993 to 2011, homosexuals were allowed to serve in the U.S. military but were not allowed to talk about their sexual orientation or engage in sexual activity, and commanding officers were not allowed to question service members about their sexual orientation. This official policy was informally known as “Don’t ask, don’t tell.”
Pro-life senators have adopted a similar “don’t ask, don’t tell” approach to SCOTUS nominees. They don’t ask a nominee their position on Roe, and the nominees don’t tell whether they would keep abortion-on-demand as the law of the land. The result is that over the past 47 years more than one-in-three justices appointed by pro-life presidents and confirmed by pro-life senators have ruled in favor of abortion rights.
In the confirmation hearings for Amy Comey Barrett, pro-life senators can set a new precedent. They should adopt Sen. Hawley’s abandoned standard of refusing to support any nominee who won’t openly agree to defend the rights of the unborn. When it comes to questions about abortion, judicial nominees should “let your ‘Yes’ be ‘Yes,’ and your ‘No,’ ‘No.’ For whatever is more than these is from the evil one” (Matt. 5:37).