Amy Coney Barrett and the Republican Abortion Scam

(Bloomberg Opinion) -- One of the longest-running cons in American politics is the Supreme Court's perpetually just-around-the-corner repudiation of Roe v. Wade. Amy Coney Barrett, President Donald Trump's third nominee to the court, will be the latest test of whether Republicans can sustain their four-decade-long rhetorical assault on Roe, during which conservatives have dominated the Supreme Court without ever taking responsibility to end abortion rights.

The demise of Roe began under President Ronald Reagan, who appointed four Supreme Court justices. Somehow Roe survived. No matter. Reagan's anti-abortion successor, George H.W. Bush, added two more appointments to the court, making a total of six new appointments for the anti-abortion movement. Roe was as good as dead.

Three decades later, it's a credit to Republicans' appetite for hypocrisy, and to the anti-abortion movement's tolerance for betrayal, that the game is still going. Yes, over time abortion rights have been curtailed for poor women in red states. But the anti-abortion movement was promised a great deal more than that.

The appointment of the most recent Republican to the Republican-majority court, Justice Brett Kavanaugh, illustrates the sport. On the day she announced her decisive support for Kavanaugh's elevation to the high court, Republican Senator Susan Collins, the state of Maine's most concerned citizen, likened Kavanaugh to previous GOP appointees who had failed to overturn Roe. If “conservative ideologues” thought they had a fellow traveler in Kavanaugh, said the pro-choice Collins, they would be sorely disappointed. Meanwhile, over at the National Right to Life organization, it was all hands on deck to get the newest anti-abortion justice — the very same Brett Kavanaugh — seated on the court.

Clearly, someone wasn't on the level. But who?

Barrett is publicly identified with opposition to abortion. Democrats wasted no time portraying her as a crusader who would love to scuttle Roe v. Wade right after she realizes the GOP goal of relieving millions of Americans of their health insurance.

Maybe Barrett is fanatically committed to extinguishing abortion rights. Or maybe she's more like Michael McConnell. In an extraordinary essay last week in the Washington Post, McConnell, a conservative legal scholar and former federal judge, acknowledged the long GOP scam, calling Roe “the Road Runner of all precedents. Wile E. Coyote just never catches up.”

Barrett, in McConnell's telling, is just the latest right-wing contraption to arrive from Acme, the prelude to another explosion in the face of the anti-abortion movement. While castigating liberals for seeking political outcomes from constitutional penumbras, McConnell argues that Barrett's appointment won't lead to the overturn of Roe because “the politics would not be kind to pro-lifers”:

Right now, abortion-related disputes concern marginal cases (such as late-term abortions, parental consent, sex-selective abortion and disposal of fetal remains) where public opinion is divided and the majority might even support increased restrictions. If Roe were overruled, the debate would shift to out-and-out prohibitions, where public opinion is squarely on the side of abortion rights. Republican Party primaries would feature fights to the death between purists and compromisers, and a united pro-choice Democratic Party would gain the advantage.

So there you have it. On one side, a sworn commitment to the sanctity of life and the belief that abortion is the byproduct of Satan. On the other, a potentially nasty GOP primary. Who could blame Republicans for secretly hitching a ride with Satan?

Trump, naturally, comes down decisively on the side of expediency. Previously, the gung-ho Trump had said his appointments to the court would lead to overturning Roe “automatically.” At last week's debate with Joe Biden, however, the fate of abortion rights was an impenetrable mystery. Abortion, Trump shouted, is “not on the ballot — there is nothing happening there.” His nomination of Barrett, he said, indicates nothing about the fate of abortion rights. “You don't know her view on Roe v. Wade,” Trump said.  

Whatever her views, and whatever lengths she goes to obscure them, the most salient fact about Barrett is her willingness to accept a tainted, last-minute nomination to the court from a president waging war on the rule of law and the constitutional democracy that she, perversely, must swear to uphold.

Trump has made it clear that he wants the conservative Supreme Court to help him retain power if, as appears likely, he loses the election. No doubt Barrett would prefer to ascend to the court under less greasy circumstances. Her acquiescence says a great deal about her capacity to alter her conscience to fit the ugly fashion of her party. It doesn't tell us much about the fate of abortion rights.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Francis Wilkinson writes editorials on politics and U.S. domestic policy for Bloomberg Opinion. He was executive editor of the Week. He was previously a writer for Rolling Stone, a communications consultant and a political media strategist.

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