With the clock ticking, can pro-abortion activists crack the SCOTUS-nominee "code"?

Can pro-abortion activists find anything to derail Donald Trump’s nominee to the Supreme Court before he or she gathers any momentum? The big red-rose reveal will take place at the White House in less than 60 hours, which doesn’t give them much time to pre-empt the prime-time show. NBC News reports that activists have begun looking for “code words” that will prove the intent to reverse Roe and force Susan Collins and Lisa Murkowski to veto Trump’s choice … whoever it is:


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.

But what counts as code, and what doesn’t? It depends on which group of activists doing the looking. For instance, one Planned Parenthood PR specialist looks for the words “abortion on demand” as code for “I’ll reverse Roe“:

“This has been code,” said Elizabeth Toledo, a crisis communications consultant to Planned Parenthood who has studied the pro-life messaging campaign for years.

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.”


Ahem. Planned Parenthood alone aborts over 300,000 children a year. America must be the most dangerous nation for the health of pregnant women if those were all “exceptions for health of the mother.” (It’s certainly one of the most dangerous nations in the developed world for the health of unborn children, thanks in large part to Planned Parenthood.) Roe doesn’t allow for abortion only in exceptional health-risk cases anyway, and it would directly prohibit any laws that attempted to restrict abortions to those exceptions. The decision concludes that abortion can’t be limited to that because of the privacy rights of the woman.

At least “abortion on demand” as a code remains on point. Others want to read code into barely related concepts, such as those who see a Roe-coded message in “strict constitutionalist”:

“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.

Actually, “strict constitutionalist” covers a lot more ground than abortion, and has higher priority targets. A strict constitutionalist might well decide that abortion was a matter left for the states, but Roe dealt with private transactions. Strict constitutionalists would have far more concern about earlier decisions that warped the balance between states and the federal government, such as Wickard v Filburn, which expanded the concept of interstate commerce to the point where it became a meaningless boundary on federal power. The focus for strict constitutionalists might cross some lines of stare decisis, but even that would likely aim first and foremost at New Deal-era decisions like Wickard and those that followed from them. The precedent most at risk from a strict constitutionalist would likely be John Robert’s decision on ObamaCare, not Roe.


Besides, all of this effort likely won’t pay off anyway. Collins and Murkowski have made it clear that Roe isn’t their only concern, and that they have limited their opposition only to a jurist who has openly opposed it:

Alito did have a record that suggested his views. While on the 3rd Circuit Court of Appeals, Alito had voted on Planned Parenthood v. Casey before it reached the Supreme Court. His position was more conservative than O’Connor’s. Alone among his peers on the U.S. Court of Appeals for the 3rd Circuit, Alito thought the state should be able to require women seeking abortions to first notify their husbands. During his Senate confirmation hearings, Alito refused to call Roe v. Wadesettled law. His calling it settled law would have been a signal that he was promising to uphold it. But he did say that he respected stare decisis, the idea that past decisions are binding. In the end, all but one Republican voted to confirm Alito, as did four conservative Democrats. …

The only Republican to vote against Alito was Lincoln D. Chafee of Rhode Island. Chafee was in a much more competitive race with a conservative challenger in the primary and a strong Democratic opponent, Sheldon Whitehouse, who ultimately defeated him in the general election. Chafee also risked losing a coveted endorsement from the abortion rights advocacy group NARAL if he voted for Alito. But neither Collins nor Murkowski faces voters this year.

Collins and Murkowski know that they could vote for a nominee who may become that justice who provides the vote to overturn or gut Roe v. Wade. That’s why Murkowski emphasizes that there are other issues besides Roe before the court, and why Collins will explain the importance of precedent when she meets with nominees.

But such a court decision won’t take place for months or even years. Voters are less likely to blame a single senator for a decision made by the full court long after that senator’s confirmation vote than they are to blame a senator for her vote on legislation. And so a Republican senator can try to avoid blame by sticking with the president’s nominee.


It’s not necessary to jump through even this many hoops to get to the conclusion. How did Collins and Murkowski vote on Neil Gorsuch, a conservative “strict constitutionalist” whose record suggests he might have some animus to the significant changes in Roe? They both voted to confirm Gorsuch to the Supreme Court, along with all other Republicans and three red-state Democrats — Heidi Heitkamp, Joe Manchin, and Joe Donnelly.

The first lesson here is that “code” doesn’t cut it. Unless the nominee has spoken openly of a desire to overturn Roe — something not even Amy Coney Barrett has done — Collins and Murkowski are almost certain to vote for Trump’s nominee. And the second and most important lesson to learn here is that pro-abortion activists are really only interested in one code when it comes to opposing Supreme Court nominees … the (R) next to the name of the president that appoints them.

Addendum: All of this is in service to a very unlikely proposition anyway.

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