In a pair of general-election debates, both Trump and Vice President Pence danced around the question of the law and abortion access — a stark contrast to then-candidate Trump’s explicit promise four years ago to nominate only justices who would overturn Roe v. Wade, the 1973 decision legalizing the procedure. And in the Senate, an upstart conservative Republican’s push to confirm justices who view Roe as wrongly decided is causing visible discomfort among his GOP colleagues who believe Supreme Court nominees should face no such litmus test in their confirmation process.
The dynamics unfold as polling continues to show that a majority of Americans oppose overturning the decision in public surveys and private data analyzed by campaign strategists, prompting Republicans on the November ballot in battleground states to navigate the abortion issue delicately in their campaigns.
“Both those guys were avidly trying to avoid the hard reality of that question,” Ilyse Hogue, the president of NARAL Pro-Choice America, said of Trump and Pence in their respective debates. “They’re pushing an agenda that is politically, deeply unpopular.”
At his first, chaotic debate with Democrat Joe Biden last week, Trump deflected questions about how Barrett might rule on abortion should she be confirmed, telling Biden that “you don’t know her view on Roe v. Wade.” Trump also has said he did not discuss abortion in his interview with Barrett before he selected her to replace the late Justice Ruth Bader Ginsburg, a consistent vote for reproductive rights.
If confirmed, Barrett would be Trump’s third conservative justice installed on the court.
Pence, meanwhile, declined to directly answer a question about whether he would want his home state of Indiana to ban abortions if the Supreme Court overturned the law, which would then leave the issue up to the states. His opponent, Democratic vice-presidential candidate Kamala D. Harris, did not directly answer a similar question regarding her home state of California.
“There’s the issue of choice, and I will always fight for a woman’s right to make a decision about her own body,” said Harris, who will take part in the confirmation hearings as a member of the Senate Judiciary Committee.
The vice president did later stress his antiabortion credentials while emphasizing that he would not presume how Barrett would rule if she were a Supreme Court justice.
“I couldn't be more proud to serve as vice president to a president who stands without apology for the sanctity of human life,” Pence said at Wednesday’s debate. “I’m pro-life. I don’t apologize for it. And this is another one of those cases where there’s such a dramatic contrast.”
That approach has echoed during debates in highly contested Senate battlegrounds. In a Sept. 28 debate against her Democratic challenger, Theresa Greenfield, Sen. Joni Ernst (R-Iowa) said she believes the chances that Roe vs. Wade will be overturned “is very minimal.”
“I don’t see that happening,” said Ernst, who opposes abortion rights. “Truly, I don’t see that happening.”
Recent polling suggests that Americans oppose overturning the nearly 50-year-old decision by a wide margin, although by how much depends on the poll.
A Fox News poll released this week found that 61 percent of registered voters said the Supreme Court should let the ruling stand, while 28 percent said it should be overturned, roughly 2-to-1 opposition. A September national survey by the Marquette University Law School found that 56 percent of Americans opposed the Supreme Court overturning Roe v. Wade while 32 percent supported it.
There is also broad support for keeping the law intact in battleground states that will determine the Senate majority, according to a GOP official familiar with Senate races, who spoke on the condition of anonymity to discuss campaign strategy, perhaps explaining the careful approach by Ernst and other Republican senators up for reelection on abortion.
Ernst also is a member of the Judiciary Committee, where Democrats next week are sure to probe Barrett’s views on abortion, her past writings on the issue and her approach toward legal precedents.
But at least one key GOP senator on the committee believes Barrett would view the law as incorrectly decided, satisfying a test for him and other conservatives who have long been disappointed by Republican appointees to the Supreme Court who ultimately opposed chipping away at abortion rights.
Sen. Josh Hawley (R-Mo.), who said earlier this year that he would not support a Supreme Court candidate who did not believe the abortion ruling was wrongly decided, said Barrett’s extensive record on the decision, including her opinions, lectures and even her lecture notes, demonstrate that she meets his standard for a justice.
“There’s plenty of evidence, I think, to demonstrate that she understands that Roe is — in my words — an act of judicial imperialism,” Hawley said. “And I feel very comfortable with her on that issue.”
In 2006, Barrett signed her name to an Indiana newspaper advertisement in the South Bend Tribune that denounced the “barbaric legacy” of Roe vs. Wade and called for it to be overturned. Barrett was a law professor at the University of Notre Dame at the time, where she was also a member of Faculty for Life.
Hawley’s approach has been far more aggressive than that of other Republicans, who still try to abide by a tradition that senators should not impose such questions of Supreme Court nominees.
“That’s not a test I would lay down, and I’m a very pro-life person,” said Sen. John Thune (S.D.), the second-ranking GOP senator. Of Hawley’s method, Thune said, “I don’t think that’ll be something that you’ll see other, too many other members doing.”
Sen. Thom Tillis (R-N.C.), like Hawley a member of the Judiciary Committee, flatly said: “I don’t have litmus tests like that.”
“You’re putting the nominee in an unfair position, you’re asking them to talk about a future judgment that they would be a part of,” said Tillis, who faces reelection. “Any attorney should know that.”
Sen. Lisa Murkowski (Alaska), one of just two GOP senators who support abortion rights, said that if a nominee were to state that Roe was incorrectly decided, “that would be disqualifying in my view.”
“I’m a very pro-life person and I think that Roe is a very, very flawed decision,” said Sen. Ben Sasse (R-Neb.). “And yet I am not a fan of politicians talking about the outcomes of cases that may come before the court.”
In private one-on-one meetings with senators, Barrett has been discreet on the question of precedent, at least according to one Senate Democrat who has spoken with her ahead of the confirmation hearing.
Sen. Christopher A. Coons (D-Del.) said he noted to Barrett that the late Justice Antonin Scalia — whom she clerked for and said “his judicial philosophy is mine, too” — was a fierce critic of Supreme Court decisions that established a constitutional right to privacy. Asked by Coons whether she agreed with Scalia, Barrett demurred during their phone call, according to the senator.
Yet her rulings reveal skepticism about a broad interpretation of abortion rights, and a willingness to entertain state restrictions on the procedure.
On the U.S. Court of Appeals for the 7th Circuit, she joined a dissent about a ruling that found unconstitutional an Indiana law banning abortions sought because of the sex or disability of a fetus. The panel ruled, as it said other courts have, that Supreme Court precedent did not allow questioning of a woman’s reasoning for an abortion before viability.
Judge Frank H. Easterbrook, joined by Barrett and two other judges, reached out to disagree, even though the state had not appealed the panel’s decision on that part of the law to the full court.
Barrett also objected to her court blocking another Indiana abortion restriction, which required parental notification when a girl younger than 18 seeks an abortion, even if she had asked a court to provide consent, instead of her parents. The judge would have to provide notification unless he found it was not in the juvenile’s “best interests.”
In her speech at the Rose Garden during a Sept. 26 ceremony announcing Trump’s nomination of her, Barrett signaled that she would separate her personal perspectives from her legal decisions, saying that “judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.”
“We have long said that judges, federal judges or justices . . . should be men and women who will strictly interpret the Constitution and not legislate from the bench,” said Carol Tobias, president of National Right to Life. “I think Amy Coney Barrett fits into that mold.”
Tobias added: “I think after almost four years of pro-life policies, executive orders and administrative actions, there is no doubt where Donald Trump and Mike Pence stand.”
Robert Barnes and Scott Clement contributed to this report.