A Supreme Court abortion decision is expected any day. Here’s what you need to know.

The U.S. Supreme Court traditionally releases its major opinions in the month of June. We have already seen blockbuster rulings on LGBT employment discrimination and DACA. Next up: June Medical Services v. Russo, which will determine the fate of a Louisiana law requiring abortionists to have admitting privileges at a hospital within 30 miles of their practice.

Image via the Katrina Jackson for
Senate District 34 facebook page

The common-sense, bipartisan law was spearheaded by then-state representative (now state senator) Katrina Jackson (pictured), a Democrat. It is not a direct challenge to Roe v. Wade. Instead, it seeks to harness the power of existing medical institutions to identify and stop abortionists who are especially dangerous to women. As pro-choice author William Saletan noted years ago in his chilling Back Alley series, the medical community knows full well who these shoddy abortionists are and quietly declines to work with them — but historically, they have refused to speak up for political reasons. Admitting privileges requirements make these “open secrets” truly open, and force the abortion lobby to live up to the “safe” part of its empty motto.

Side note: Any news coverage of this case that fails to mention Kevin Work is sham journalism. He’s exactly the type of abortionist that Louisiana’s law is meant to address. Read more about him here
Louisiana’s law is similar to the Texas law that the Supreme Court tragically struck down in Whole Woman’s Health v. Hellerstedt, although the Fifth Circuit Court of Appeals noted some differences when it upheld Louisiana’s law in 2018. Pro-life advocates were horrified by Hellerstedt, which prioritized abortion access and industry profits over women’s safety. Hellerstedt was a 5-3 decision, when the Court had only eight Justices due to the death of Justice Scalia. (The three in the minority were Chief Justice Roberts and Justices Thomas and Alito.) Since then, pro-abortion Justice Kennedy has retired, and Justices Gorsuch and Kavanaugh — widely believed to support the right to life — have joined the Court. 
Here are the possible outcomes to watch for in Russo, from worst to best:
  • The Supreme Court strikes down Louisiana’s law. This would mean that at least one of the Justices believed to be an anti-abortion vote is not, and that pro-life groups have received little in return for their decades of putting up with the Republican Party. If this happens, expect absolute chaos to ensue.
  • The Supreme Court upholds Louisiana’s law without overturning Hellerstedt. This would essentially ratify the Fifth Circuit’s approach. Lower courts would be instructed to consider other states’ admitting privileges laws on a case-by-case basis, depending on such factors as the number of abortionists in the state and what criteria the state’s hospitals use to grant or deny admitting privileges. 
  • The Supreme Court upholds Louisiana’s law, recognizes its past mistake, and reverses Hellerstedt. This would be a victory for women’s health and babies’ lives.
  • The Supreme Court finds that the plaintiffs lack standing. This is a long shot, so don’t get your hopes up, but a decision on the basis of standing would be huge. The legal concept of standing means that a person can’t sue merely because they dislike a law; they have to have a certain level of direct involvement. To give an obvious example, the plaintiffs in the LGBT employment discrimination cases decided earlier this month were, not surprisingly, LGBT people whose employers discriminated against them. In Russo, the plaintiffs are arguing that Louisiana’s law unduly burdens women’s right to an abortion — but the plaintiffs in Russo aren’t women, much less pregnant mothers seeking abortions and facing legal burdens. The Russo plaintiffs are abortion companies whose hired abortionists don’t have admitting privileges. Although many past cases have involved abortion companies legally standing in for abortion-seeking mothers (e.g. Planned Parenthood v. Casey and Hellerstedt), allowing that type of substitute standing in a safety regulations case creates a serious conflict of interest. Women’s desire to obtain the best possible care and avoid quacks like Kevin Work is directly at odds with abortion vendors’ desire to cut costs. If the Supreme Court finally expresses some long-overdue skepticism at the idea that abortion businesses represent women’s interests, our legal system could finally escape, or at least reduce, the influence of abortion industry money.
Dr. Michael New of the Charlotte Lozier Institute puts it best:

A Supreme Court abortion decision is expected any day. Here’s what you need to know.

The U.S. Supreme Court traditionally releases its major opinions in the month of June. We have already seen blockbuster rulings on LGBT employment discrimination and DACA. Next up: June Medical Services v. Russo, which will determine the fate of a Louisiana law requiring abortionists to have admitting privileges at a hospital within 30 miles of their practice.

Image via the Katrina Jackson for
Senate District 34 facebook page

The common-sense, bipartisan law was spearheaded by then-state representative (now state senator) Katrina Jackson (pictured), a Democrat. It is not a direct challenge to Roe v. Wade. Instead, it seeks to harness the power of existing medical institutions to identify and stop abortionists who are especially dangerous to women. As pro-choice author William Saletan noted years ago in his chilling Back Alley series, the medical community knows full well who these shoddy abortionists are and quietly declines to work with them — but historically, they have refused to speak up for political reasons. Admitting privileges requirements make these “open secrets” truly open, and force the abortion lobby to live up to the “safe” part of its empty motto.

Side note: Any news coverage of this case that fails to mention Kevin Work is sham journalism. He’s exactly the type of abortionist that Louisiana’s law is meant to address. Read more about him here
Louisiana’s law is similar to the Texas law that the Supreme Court tragically struck down in Whole Woman’s Health v. Hellerstedt, although the Fifth Circuit Court of Appeals noted some differences when it upheld Louisiana’s law in 2018. Pro-life advocates were horrified by Hellerstedt, which prioritized abortion access and industry profits over women’s safety. Hellerstedt was a 5-3 decision, when the Court had only eight Justices due to the death of Justice Scalia. (The three in the minority were Chief Justice Roberts and Justices Thomas and Alito.) Since then, pro-abortion Justice Kennedy has retired, and Justices Gorsuch and Kavanaugh — widely believed to support the right to life — have joined the Court. 
Here are the possible outcomes to watch for in Russo, from worst to best:
  • The Supreme Court strikes down Louisiana’s law. This would mean that at least one of the Justices believed to be an anti-abortion vote is not, and that pro-life groups have received little in return for their decades of putting up with the Republican Party. If this happens, expect absolute chaos to ensue.
  • The Supreme Court upholds Louisiana’s law without overturning Hellerstedt. This would essentially ratify the Fifth Circuit’s approach. Lower courts would be instructed to consider other states’ admitting privileges laws on a case-by-case basis, depending on such factors as the number of abortionists in the state and what criteria the state’s hospitals use to grant or deny admitting privileges. 
  • The Supreme Court upholds Louisiana’s law, recognizes its past mistake, and reverses Hellerstedt. This would be a victory for women’s health and babies’ lives.
  • The Supreme Court finds that the plaintiffs lack standing. This is a long shot, so don’t get your hopes up, but a decision on the basis of standing would be huge. The legal concept of standing means that a person can’t sue merely because they dislike a law; they have to have a certain level of direct involvement. To give an obvious example, the plaintiffs in the LGBT employment discrimination cases decided earlier this month were, not surprisingly, LGBT people whose employers discriminated against them. In Russo, the plaintiffs are arguing that Louisiana’s law unduly burdens women’s right to an abortion — but the plaintiffs in Russo aren’t women, much less pregnant mothers seeking abortions and facing legal burdens. The Russo plaintiffs are abortion companies whose hired abortionists don’t have admitting privileges. Although many past cases have involved abortion companies legally standing in for abortion-seeking mothers (e.g. Planned Parenthood v. Casey and Hellerstedt), allowing that type of substitute standing in a safety regulations case creates a serious conflict of interest. Women’s desire to obtain the best possible care and avoid quacks like Kevin Work is directly at odds with abortion vendors’ desire to cut costs. If the Supreme Court finally expresses some long-overdue skepticism at the idea that abortion businesses represent women’s interests, our legal system could finally escape, or at least reduce, the influence of abortion industry money.
Dr. Michael New of the Charlotte Lozier Institute puts it best:

SCOTUS Watch: Which Senators Might Flip?

As the confirmation vote for Supreme Court nominee Brett Kavanaugh grows closer, nerves are rising for what will likely be a tight vote. Kavanaugh needs a simple majority of our 100 U.S. Senators to vote in favor of his confirmation for him to be appointed to the court, and the Senate is currently split 50-49 in favor of the Republicans (one short of 100 total after John McCain’s passing).

If Kavanaugh is confirmed, there is reason to believe Roe v. Wade could be significantly compromised in the coming years, and perhaps overturned after that. Given the stakes, the overwhelming majority of Senators are expected to vote along party lines, with Republicans voting in favor of Kavanaugh’s confirmation and Democrats voting against it. That being said, there are a handful of Senators who may vote against party lines.

For the Democrats, the Senators most likely to flip are Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia, and Joe Donnelly of Indiana. All three of these Senators are up for reelection in November, and as red-state Democrats, they are under pressure from their home states to vote in favor of Kavanaugh’s confirmation.

For the Republicans, the most likely Senators to flip include Susan Collins of Maine, Lisa Murkowski of Alaska, and Dean Heller of Nevada. Collins and Murkowski are pro-choice, and the National Abortion Rights Activist League (NARAL) scores both of them in the 40% range, with Murkowski scoring 42% and Collins scoring 45%. Though these scores are not high overall, they are still very high scores for a Republican. Dean Heller has voted pro-life as of late, but he may flip for the same reasons as the three Democrats mentioned earlier. Heller is a Republican from a relatively blue state (Nevada), and voting against Kavanaugh’s confirmation might help him win reelection in November.

While any of these Senators on either side of the aisle may flip, the Democrats are much more likely to do so than the Republicans. All three of these Democrats voted against party lines to confirm President Trump’s first Supreme Court nominee, Neil Gorsuch, so there is good reason to believe they will do the same for Kavanaugh. On other hand, every Republican voted in favor of confirming Neil Gorsuch. The vote will be tight, but it is most likely that this vote will be nearly identical to the Gorsuch vote, and that Brett Kavanaugh will win a slim majority to become the next Supreme Court Justice of the United States.


[Today’s guest post by Pat Thomas is part of our paid blogging program.]

SCOTUS Watch: Which Senators Might Flip?

As the confirmation vote for Supreme Court nominee Brett Kavanaugh grows closer, nerves are rising for what will likely be a tight vote. Kavanaugh needs a simple majority of our 100 U.S. Senators to vote in favor of his confirmation for him to be appointed to the court, and the Senate is currently split 50-49 in favor of the Republicans (one short of 100 total after John McCain’s passing).

If Kavanaugh is confirmed, there is reason to believe Roe v. Wade could be significantly compromised in the coming years, and perhaps overturned after that. Given the stakes, the overwhelming majority of Senators are expected to vote along party lines, with Republicans voting in favor of Kavanaugh’s confirmation and Democrats voting against it. That being said, there are a handful of Senators who may vote against party lines.

For the Democrats, the Senators most likely to flip are Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia, and Joe Donnelly of Indiana. All three of these Senators are up for reelection in November, and as red-state Democrats, they are under pressure from their home states to vote in favor of Kavanaugh’s confirmation.

For the Republicans, the most likely Senators to flip include Susan Collins of Maine, Lisa Murkowski of Alaska, and Dean Heller of Nevada. Collins and Murkowski are pro-choice, and the National Abortion Rights Activist League (NARAL) scores both of them in the 40% range, with Murkowski scoring 42% and Collins scoring 45%. Though these scores are not high overall, they are still very high scores for a Republican. Dean Heller has voted pro-life as of late, but he may flip for the same reasons as the three Democrats mentioned earlier. Heller is a Republican from a relatively blue state (Nevada), and voting against Kavanaugh’s confirmation might help him win reelection in November.

While any of these Senators on either side of the aisle may flip, the Democrats are much more likely to do so than the Republicans. All three of these Democrats voted against party lines to confirm President Trump’s first Supreme Court nominee, Neil Gorsuch, so there is good reason to believe they will do the same for Kavanaugh. On other hand, every Republican voted in favor of confirming Neil Gorsuch. The vote will be tight, but it is most likely that this vote will be nearly identical to the Gorsuch vote, and that Brett Kavanaugh will win a slim majority to become the next Supreme Court Justice of the United States.


[Today’s guest post by Pat Thomas is part of our paid blogging program.]

Kavanaugh’s Opinion in Doe v. District of Columbia is not pro-abortion

In recent weeks, there have been a few articles in left-leaning media outlets concerning Judge Kavanaugh’s opinion in the case of Doe v. District of Columbia, with some suggesting that the opinion allows coerced abortions on people with disabilities. And to be abundantly clear, support for coerced abortions on people with disabilities would be an immediate deal-breaker for pro-life advocacy groups—which is why I was immediately suspicious of the claim. Doe is a 2007 case. How on earth could the Federalist Society, Heritage Foundation, White House bureaucrats, and all of the the dozens of pro-life organizations with an interest in the next Supreme Court nominee all fail to catch an 11-year-old coerced abortion decision while vetting Kavanaugh?

Last week National Review published a rebuttal which called the Doe controversy a “vicious distortion” of Kavanaugh’s record and helpfully included a link to his opinion. I happen to be a lawyer, so I decided to analyze the Doe opinion myself. With the Kavanaugh hearings beginning today, now is as good a time as any to sort this out.

I won’t keep you in suspense. The Doe case has nothing to do with abortion and the criticism is baseless.

The central issue in Doe was the District of Columbia Department of Disability Services’ procedures to authorize surgeries for a small subset of people whose intellectual disabilities prevent them from making medical decisions. Specifically, the case concerned D.C. residents for whom all of the following are true:

  1. The person lacks capacity, meaning that he or she “lacks sufficient mental capacity to appreciate the nature and
    implications of a health-care decision, make a choice regarding the
    alternatives presented or communicate that choice in an unambiguous
    manner.” The capacity determination must be made by two physicians, at least one of them being a psychiatrist. Not all intellectually disabled people lack capacity under this test.
  2. The person has always lacked capacity, and therefore the District can’t rely on any previously expressed wishes concerning medical treatment.
  3. The person does not have a proxy to make medical decisions for him or her. As stated in the opinion (citations omitted): “D.C. law creates a hierarchy of individuals authorized to make
    healthcare decisions for persons who have been certified … as lacking mental capacity. That list includes, in order of priority: a court-appointed guardian
    or conservator; a spouse or domestic partner; an adult child; a
    parent; an adult sibling; a religious superior, if applicable; a
    close friend; or the nearest living relative. The [Department of Disability Services] Administrator makes healthcare decisions for an incapacitated
    patient only if none of the above individuals is available and willing
    to do so.”
  4. And, last but certainly not least, the potential surgery in question is not an abortion. Again, as stated in the opinion: “The D.C. Code also explicitly provides that abortions, sterilizations,
    and psycho-surgeries may not be authorized, at least absent a court
    order.”

To recap: when a person has a lifelong intellectual disability that has always prevented him or her from appreciating the nature and implications of a healthcare decision, and that person sadly has no guardian, spouse, child, parent, sibling, clergy member, close friend, or living relative to serve as a healthcare decision-maker, and that person has a medical issue that may call for a surgical intervention—other than abortion, sterilization, or psycho-surgery—the Department of Disability Services has to have protocols in place to address all competing considerations and try to reach an outcome that will further the person’s health.

The plaintiffs alleged that those protocols were inadequate and failed to give enough weight to the person’s wishes. The District of Columbia countered that the person’s wishes were impossible to ascertain, and in any event, the protocol did include “efforts to discuss the surgery with the patient at the level of patient comprehension.”

Judge Kavanaugh ruled that the District of Columbia’s protocols were legally sound. If you read the opinion, maybe you’ll agree, and maybe you won’t. It’s a fairly debatable issue. What’s not fair is ignoring the explicit exclusion of abortion in order to paint Kavanaugh as some eugenicist monster.

If pro-choice groups want to find an actual villain, they might look in the mirror: Roe v. Wade itself cites the notorious forced sterilization case of Buck v. Bell with approval.

Kavanaugh’s Opinion in Doe v. District of Columbia is not pro-abortion

In recent weeks, there have been a few articles in left-leaning media outlets concerning Judge Kavanaugh’s opinion in the case of Doe v. District of Columbia, with some suggesting that the opinion allows coerced abortions on people with disabilities. And to be abundantly clear, support for coerced abortions on people with disabilities would be an immediate deal-breaker for pro-life advocacy groups—which is why I was immediately suspicious of the claim. Doe is a 2007 case. How on earth could the Federalist Society, Heritage Foundation, White House bureaucrats, and all of the the dozens of pro-life organizations with an interest in the next Supreme Court nominee all fail to catch an 11-year-old coerced abortion decision while vetting Kavanaugh?

Last week National Review published a rebuttal which called the Doe controversy a “vicious distortion” of Kavanaugh’s record and helpfully included a link to his opinion. I happen to be a lawyer, so I decided to analyze the Doe opinion myself. With the Kavanaugh hearings beginning today, now is as good a time as any to sort this out.

I won’t keep you in suspense. The Doe case has nothing to do with abortion and the criticism is baseless.

The central issue in Doe was the District of Columbia Department of Disability Services’ procedures to authorize surgeries for a small subset of people whose intellectual disabilities prevent them from making medical decisions. Specifically, the case concerned D.C. residents for whom all of the following are true:

  1. The person lacks capacity, meaning that he or she “lacks sufficient mental capacity to appreciate the nature and
    implications of a health-care decision, make a choice regarding the
    alternatives presented or communicate that choice in an unambiguous
    manner.” The capacity determination must be made by two physicians, at least one of them being a psychiatrist. Not all intellectually disabled people lack capacity under this test.
  2. The person has always lacked capacity, and therefore the District can’t rely on any previously expressed wishes concerning medical treatment.
  3. The person does not have a proxy to make medical decisions for him or her. As stated in the opinion (citations omitted): “D.C. law creates a hierarchy of individuals authorized to make
    healthcare decisions for persons who have been certified … as lacking mental capacity. That list includes, in order of priority: a court-appointed guardian
    or conservator; a spouse or domestic partner; an adult child; a
    parent; an adult sibling; a religious superior, if applicable; a
    close friend; or the nearest living relative. The [Department of Disability Services] Administrator makes healthcare decisions for an incapacitated
    patient only if none of the above individuals is available and willing
    to do so.”
  4. And, last but certainly not least, the potential surgery in question is not an abortion. Again, as stated in the opinion: “The D.C. Code also explicitly provides that abortions, sterilizations,
    and psycho-surgeries may not be authorized, at least absent a court
    order.”

To recap: when a person has a lifelong intellectual disability that has always prevented him or her from appreciating the nature and implications of a healthcare decision, and that person sadly has no guardian, spouse, child, parent, sibling, clergy member, close friend, or living relative to serve as a healthcare decision-maker, and that person has a medical issue that may call for a surgical intervention—other than abortion, sterilization, or psycho-surgery—the Department of Disability Services has to have protocols in place to address all competing considerations and try to reach an outcome that will further the person’s health.

The plaintiffs alleged that those protocols were inadequate and failed to give enough weight to the person’s wishes. The District of Columbia countered that the person’s wishes were impossible to ascertain, and in any event, the protocol did include “efforts to discuss the surgery with the patient at the level of patient comprehension.”

Judge Kavanaugh ruled that the District of Columbia’s protocols were legally sound. If you read the opinion, maybe you’ll agree, and maybe you won’t. It’s a fairly debatable issue. What’s not fair is ignoring the explicit exclusion of abortion in order to paint Kavanaugh as some eugenicist monster.

If pro-choice groups want to find an actual villain, they might look in the mirror: Roe v. Wade itself cites the notorious forced sterilization case of Buck v. Bell with approval.

Last chance: send comments to HHS on the Protect Life Rule

Tomorrow is the deadline to submit your comments to the Department of Health & Human Services in support of the Protect Life Rule. This regulation limits the ability of abortion businesses to obtain government subsidies through the Title X program. Title X is intended to fund contraception, not abortion. The Protect Life Rule will prioritize funding for federally qualified health centers and other community clinics that provide legitimate healthcare, including contraceptives, without killing anybody.

You can read the proposed rule here and submit your supportive comment here. I wrote:

I strongly support the proposed rule. For too long, Title X funds have subsidized abortion vendors. The provision of taxpayer money to Planned Parenthood—which has repeatedly defrauded Medicaid and failed to report the sexual abuse of children, among other scandals—is especially troubling. Federally qualified health centers and other community clinics are far more deserving recipients of Title X funds, and are fully capable of meeting women’s nonviolent family planning needs.

Abortion lobbyists have predictably mischaracterized the Protect Life Rule as a “gag rule” that censors doctors. That’s nonsense. Abortionists remain welcome to say whatever they like. And the government remains free to direct its tax revenue to deserving healthcare providers that do not destroy innocent human lives.

The Protect Life Rule is not even particularly novel. A similar rule was briefly put in place by the Reagan administration (but soon reversed by the abortion-friendly Clinton administration). Abortion industry groups brought a legal challenge at the time, which the Supreme Court rejected, holding that the funding limitation did not run afoul of the First Amendment; rather, the government “has merely chosen to fund one activity [family planning] to the exclusion of the other [abortion].”

Planned Parenthood would stand to lose, and nonviolent clinics would stand to gain, $60 million a year when the Protect Life Rule is enacted. While we’d still have a long way to go in removing Planned Parenthood’s total government subsidy of approximately $500 million a year, this is a substantial first step. Submit your comment today!

Last chance: send comments to HHS on the Protect Life Rule

Tomorrow is the deadline to submit your comments to the Department of Health & Human Services in support of the Protect Life Rule. This regulation limits the ability of abortion businesses to obtain government subsidies through the Title X program. Title X is intended to fund contraception, not abortion. The Protect Life Rule will prioritize funding for federally qualified health centers and other community clinics that provide legitimate healthcare, including contraceptives, without killing anybody.

You can read the proposed rule here and submit your supportive comment here. I wrote:

I strongly support the proposed rule. For too long, Title X funds have subsidized abortion vendors. The provision of taxpayer money to Planned Parenthood—which has repeatedly defrauded Medicaid and failed to report the sexual abuse of children, among other scandals—is especially troubling. Federally qualified health centers and other community clinics are far more deserving recipients of Title X funds, and are fully capable of meeting women’s nonviolent family planning needs.

Abortion lobbyists have predictably mischaracterized the Protect Life Rule as a “gag rule” that censors doctors. That’s nonsense. Abortionists remain welcome to say whatever they like. And the government remains free to direct its tax revenue to deserving healthcare providers that do not destroy innocent human lives.

The Protect Life Rule is not even particularly novel. A similar rule was briefly put in place by the Reagan administration (but soon reversed by the abortion-friendly Clinton administration). Abortion industry groups brought a legal challenge at the time, which the Supreme Court rejected, holding that the funding limitation did not run afoul of the First Amendment; rather, the government “has merely chosen to fund one activity [family planning] to the exclusion of the other [abortion].”

Planned Parenthood would stand to lose, and nonviolent clinics would stand to gain, $60 million a year when the Protect Life Rule is enacted. While we’d still have a long way to go in removing Planned Parenthood’s total government subsidy of approximately $500 million a year, this is a substantial first step. Submit your comment today!

SBA List Poll: Voters in Key States Want Kavanaugh Confirmed to SCOTUS

In case you’ve been living under a rock, President Trump nominated Judge Brett Kavanaugh to fill the Supreme Court seat made empty by Justice Kennedy’s retirement. Speculation is rampant that Kavanaugh could be the fifth vote necessary to repeal Roe v. Wade—or at the very least, allow states to regulate abortion businesses like the medical facilities they purport to be, which the Court rejected in Whole Woman’s Health v. Hellerstedt.

The confirmation process is bound to be nasty and partisan. The GOP currently holds the slimmest of majorities in the Senate. Possible surprises could come from Republican abortion supporters Sen. Murkowski of Alaska and Sen. Collins of Maine, and/or from any of the several Democratic Senators who are up for re-election in red states.

Yesterday, the Susan B. Anthony List released a poll from some of those states. Respondents in Florida (Sen. Nelson), Indiana (Sen. Donnelly), Missouri (Sen. McCaskill), North Dakota (Sen. Heitkamp), and West Virginia (Sen. Manchin) were asked if they wanted their Senators to confirm Trump’s then-unnamed nominee. Even without knowing it would be Kavanaugh, who is widely considered a safe pick, strong majorities supported confirmation:

  • 56% in Florida
  • 56% in Indiana
  • 57% in Missouri
  • 68% in North Dakota
  • 59% in West Virginia
The numbers highlight the bind those five Democratic Senators face. Will they follow the will of their constituents by confirming Kavanaugh, and risk displeasing their base? Or will they vote against Kavanaugh and have that vote become the subject of attack ads which will resonate with a majority of voters? Neither is ideal heading into November. 
The pollsters followed up with a fascinating second question: “Do you think that the U.S. Supreme Court should decide abortion policy for [Name of State], or do you think abortion policy should be decided by the people of [Name of State] through their elected officials?” 
This is a great way to ask the question. As many have pointed out, polls that ask whether a person supports or opposes Roe v. Wade are highly problematic. Roe is a complex case that legal scholars have written volumes about; it’s unfair to assume that the average person understands it. And when pollsters try to explain Roe‘s holding as part of the question, they invariably do a bad job. Framing the question in terms of who makes abortion policy is much less confusing. It’s not perfect—for one thing, it doesn’t account for subsequent cases like Planned Parenthood v. Casey and Gonzalez v. Carhart that gave states a bit more room to legislate—but it beats the alternatives. 
And the answers are quite illuminating. In all five states surveyed, voters much preferred that abortion policy be set by legislatures instead of the Supreme Court: 
  • 54% in Florida
  • 65% in Indiana
  • 57% in Missouri
  • 67% in North Dakota
  • 57% in West Virginia
Those results are great news for the right to life, but we should not take anything for granted. Remember to contact your Senators, especially if you live in one of those key states!

SBA List Poll: Voters in Key States Want Kavanaugh Confirmed to SCOTUS

In case you’ve been living under a rock, President Trump nominated Judge Brett Kavanaugh to fill the Supreme Court seat made empty by Justice Kennedy’s retirement. Speculation is rampant that Kavanaugh could be the fifth vote necessary to repeal Roe v. Wade—or at the very least, allow states to regulate abortion businesses like the medical facilities they purport to be, which the Court rejected in Whole Woman’s Health v. Hellerstedt.

The confirmation process is bound to be nasty and partisan. The GOP currently holds the slimmest of majorities in the Senate. Possible surprises could come from Republican abortion supporters Sen. Murkowski of Alaska and Sen. Collins of Maine, and/or from any of the several Democratic Senators who are up for re-election in red states.

Yesterday, the Susan B. Anthony List released a poll from some of those states. Respondents in Florida (Sen. Nelson), Indiana (Sen. Donnelly), Missouri (Sen. McCaskill), North Dakota (Sen. Heitkamp), and West Virginia (Sen. Manchin) were asked if they wanted their Senators to confirm Trump’s then-unnamed nominee. Even without knowing it would be Kavanaugh, who is widely considered a safe pick, strong majorities supported confirmation:

  • 56% in Florida
  • 56% in Indiana
  • 57% in Missouri
  • 68% in North Dakota
  • 59% in West Virginia
The numbers highlight the bind those five Democratic Senators face. Will they follow the will of their constituents by confirming Kavanaugh, and risk displeasing their base? Or will they vote against Kavanaugh and have that vote become the subject of attack ads which will resonate with a majority of voters? Neither is ideal heading into November. 
The pollsters followed up with a fascinating second question: “Do you think that the U.S. Supreme Court should decide abortion policy for [Name of State], or do you think abortion policy should be decided by the people of [Name of State] through their elected officials?” 
This is a great way to ask the question. As many have pointed out, polls that ask whether a person supports or opposes Roe v. Wade are highly problematic. Roe is a complex case that legal scholars have written volumes about; it’s unfair to assume that the average person understands it. And when pollsters try to explain Roe‘s holding as part of the question, they invariably do a bad job. Framing the question in terms of who makes abortion policy is much less confusing. It’s not perfect—for one thing, it doesn’t account for subsequent cases like Planned Parenthood v. Casey and Gonzalez v. Carhart that gave states a bit more room to legislate—but it beats the alternatives. 
And the answers are quite illuminating. In all five states surveyed, voters much preferred that abortion policy be set by legislatures instead of the Supreme Court: 
  • 54% in Florida
  • 65% in Indiana
  • 57% in Missouri
  • 67% in North Dakota
  • 57% in West Virginia
Those results are great news for the right to life, but we should not take anything for granted. Remember to contact your Senators, especially if you live in one of those key states!