Trump’s wholesale appointment of judiciary hostile to abortion and LGBT rights has emboldened conservatives seeking to change policy via the courts

This article is more than 1 year old

This article is more than 1 year old

Alabama’s move to outlaw nearly all abortions has reverberated across America, teeing up fresh debate in culture wars that have raged for decades.

‘We have to fight’: Alabama's extreme abortion ban sparks wave of activism Read more

Conservatives are looking to the judiciary for victories on social issues. The Alabama ban laid bare a Republican push to persuade the supreme court to overturn Roe v Wade, the landmark 1973 ruling that legalized abortion.

“This is the endgame of many years chipping away at our freedoms,” said Jess McIntosh, a Democratic strategist who was an aide to Hillary Clinton’s 2016 presidential campaign. “They’ve waited for the moment they believed the courts would overturn precedent and go against the overwhelming will of the people.

“Apparently they believe that moment is now.”

The near-total abortion ban signed into law on Wednesday by the Alabama governor, Kay Ivey, makes performing an abortion a felony in all cases, with no exceptions for victims of rape and incest.

Signing the bill, Ivey said: “To the bill’s many supporters, this legislation stands as a powerful testament to Alabamians’ deeply held belief that every life is precious and that every life is a sacred gift from God.”

The move came on the heels of a highly restrictive bill in Georgia, which makes performing an abortion illegal once a heartbeat is detected. Similar legislation has passed in Mississippi, Kentucky and Ohio.

The latest efforts will almost certainly be blocked by the courts. Conservatives say that’s the point. An appeal could take the matter all the way to the supreme court, where rulings have generational effects. As Donald Trump has added two justices, social conservatives think the odds are in their favor.

”In years past there was almost a feeling of what’s the point of taking risks on the state level and pushing legislation while knowing that if it went to the supreme court, the makeup of the court wouldn’t hear the case and would not overturn Roe v Wade,” said Alice Stewart, a Republican strategist who advised the Texas senator Ted Cruz in his 2016 presidential campaign.

“That’s not the case any more. People feel emboldened given the fact that we have justices like Brett Kavanaugh and Neil Gorsuch who, in many minds, are a lot more ready and willing to consider overturning Roe v Wade than another makeup of the supreme court.”

Although the public remains somewhat split on abortion, recent polling has shown a majority supports abortion rights and opposes efforts to overturn Roe v Wade.

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Highly restrictive bans, such as those in Alabama and Georgia, are even at odds with some Republicans. A 2018 Gallup survey found 77% of Americans believed in exceptions for victims of rape and incest.

The televangelist Pat Robertson, a longtime opponent of abortion, said Alabama’s ban was “ill-considered”.

“I think Alabama has gone too far,” Robertson told viewers on the Christian Broadcasting Network. “It’s an extreme law.

“They want to challenge Roe v Wade, but my humble view is that this is not the case that we want to bring to the supreme court because I think this will lose.”

Legal analysts also believe Alabama may have gone too far. Brian Fitzpatrick, a professor of law at Vanderbilt University, said the law was “not going to go anywhere”.

“I see it being challenged,” he said, “I see the lower courts all striking it down, and I see the supreme court choosing not to take the appeal.”

Fitzpatrick did not doubt that the conservative-leaning court wants to chip away at Roe v Wade. But he expressed confidence that the justices would not want to face the consequences of doing away with the law entirely.

“They don’t want to do a wholesale undoing,” he said, “because it’s too much of a political hot potato.”

It was only four years ago that the supreme court declared same-sex marriage the law of the land, a historic moment made possible by the swing vote of former justice Anthony Kennedy. By the time the court reached its decision, public opinion had swung heavily in favor.

Social conservatives had lost the battle. So they shifted focus, toward religious freedom legislation that questioned the limits of LGBT rights. That paved the way for cases like Masterpiece Cakeshop, which involved a baker who refused to serve a same-sex couple. In a narrow ruling last year, the supreme court punted, leaving unresolved whether the baker could deny providing a wedding cake to a same-sex couple.

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Among social conservatives, many see the path to policy running not through Congress but the judiciary. Despite their grievances with Trump in 2016, many Republicans repeatedly emphasized that electing him would ensure conservative dominance over judicial nominations.

The strategy paid off. Trump has filled judicial vacancies at a record pace. The majority of judges installed oppose abortion and LGBT rights.

Fitzpatrick said it was clear neither party was interested in appealing to the average American voter.

“Trump is kind of Exhibit A that you should stop caring about the median voter and care only about your base,” he said. But, he added, “it does seem there’s more optimism in conservative circles. I think people are very optimistic that the supreme court is going to be more tolerant of a lot of these laws than they used to be.

“The environment is very friendly to getting conservative public policy to stay on the books.”