Abortion Supporters Need a Litmus Test, and Want Republicans to Give It to Them

Pro-choice media and Democrats want Republicans to apply a litmus test that no SCOTUS nominee should have to answer.

Let's be crystal clear here. Supreme Court nominees are not required to answer questions on how they'd rule on specific cases. In fact, they are constrained from doing so, since making that kind of public statement would prejudice an actual case before the Court--that would then require the justice, once approved by the Senate, to recuse him- or herself from the case.

Democrats do not want the next Supreme Court justice to be the deciding vote that overturns, or in any way in the smallest part, weakens the case law of Roe v. Wade, the 45 year old decision legalizing abortion in the U.S. They want a litmus test.

The president should probe his candidates — and apply litmus tests. He and his aides should ask potential nominees to declare themselves on Roe vs. Wade, Citizens United (which struck down limits on campaign contributions as a violation of free speech) and McDonald vs.Chicago (which upheld an individual right to own firearms).

When the Senate asks litmus-type questions, these would elicit very tried and true answers from nominees.

Going back to Judge Robert Bork, the New York Times called for a litmus test on abortion in 1987. Bork, the New Yorker wrote in 2009, "engaged the Judiciary Committee in a substantive discussion of his judicial philosophy, and the Senate, quite properly, voted him down, because of his narrow conception of the protections enshrined in the Bill of Rights." That led Sonia Sotomayor, a radical jurist who would invent "rights" out of whole cloth to achieve her liberal ends, to answer in her nomination hearing, when asked about her own judicial philosophy: "Simple: fidelity to the law. The task of a judge is not to make law—it is to apply the law." Gag me with a spoon, as the Valley Girls say.

So now, Democrats, cagey about accusations of "Borking" Trump's nominee, want to apply the shiv but keep the blood off themselves. They've attacked Republican Senator Susan Collins, whose pro-choice position is well known but certainly not in the league of NARAL, or Wendy Davis (aka Abortion Barbie), with Topher Spiro tweeting for people to "set her straight."

Democrats need Sens. Murkowski and Collins to vote against and actively oppose Trump's nominee, but Murkowski never said she'd apply a litmus test.

"My standards for Supreme Court nominees are extremely high," she tweeted. I don't see how Murkowski would vote against a Trump nominee unless, during questioning, they explicitly say they'd vote to overturn Rowe. That shouldn't happen.

Eli Watkins, at CNN, took Maine Senator Lisa Collins statements on the record and interpreted them as a litmus test, though she specifically denied it.

Nevertheless, Collins said Trump told her he would not ask a nominee how he or she would vote on Roe. She went on to say she did not believe Justice Neil Gorsuch, a conservative judge she voted to confirm last year, would vote to overturn Roe v. Wade either.

"I actually don't," she said of Gorsuch joining an opinion overturning Roe. "I had a very long discussion with Justice Gorsuch in my office and he pointed out to me that he is a co-author of a whole book on precedent."

Any Supreme Court nominee should not answer a question on how they'd vote on a case to overturn Rowe v. Wade. There are simply too many avenues for any case appearing before the Court to take. Would it be a case based on states' rights? On personhood? On fetal pain? On the First Amendment? Deciding that Rowe v. Wade is sacrosanct from all legal challenges in advance is not a quality anyone--Democrats included--should want on the Court.

That litmus test is the position of a radical, as bad as one who would say they'd never rule against a Christian because of freedom of conscience. There are situations where a Christian, regardless of the First Amendment, can be wrong (slavery, for example).

The pro-choice media, and Democrats, are being disingenuous, choosing their own litmus tests, while rejecting others, but wanting Republican senators to apply them.

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Paul C
Paul C

@Real -- We can speculate all day and night about how Christian leaders might react personally in some hypothetical situation, but I don't see how that matters to anybody.

What does matter is what they say to their respective flocks, and how this effects policy in our country.

They are against the morning after pill, which they say is murder. They tell their flock as much. Their flock gives money and support to the Republicans. Their flock may very well include individual Supreme Court members and potential members.

Nobody can define when a human soul arrives that satisfies everybody, but somebody is going to have to decide. Those Christian leaders have worked for three decades to try to be the ones to decide.

If the Supreme Court defines the beginning of human life at conception, it would override any and every State law that tries to make any form of abortion legal up to and including the morning after pill.

That's what certain key Christian leaders want and that's why they made the (ridiculous and moronic) bargain by backing Trump.


I don't disagree that anti-choice people who say they're indifferent, but I believe when push came to shove in that hypothetical, they'd choose the 6 week or 18 yr old instead of the test tube.

You miss my point. There will always be extremes on both ends. I believe woman have a right to choose, but I don't think that right is unlimited. I'm sure there are folks who would argue that a woman could opt to terminate a pregnancy while the baby is crowning. I think they're as wrong as those who oppose birth control or the morning after pill. No one can define when life begins in a way that satisfies everyone.

So just go where the majority of people would struggle, somewhere in the second trimester. Gives the woman plenty of time to choose without getting to the point where it imposes pain on another human life.

And OBTW I agree on abortion and Republicans. When the next Justice helps overturn Roe, the Republicans are going to find themselves in the minority for a long time. The game is over.

Paul C
Paul C

The "common sense test" has essentially been decided by SCOTUS in Row v. Wade, and may well be again with a different definition.

To answer your hypothetical, to an anti-abortionist, the answer would be whomever is easier to save.

To me--and yes, I'm not indifferent--I save the one I consider a person which is to say the 18 year old.

But that's me. If you think anti-abortionists are like me, you need to do some more reading.

The fight against Row v. Wade got Trump elected, and without abortion, Republicans couldn't be elected dog catcher.

And metaphysical? Au contraire. I believe you are oversimplifying this debate by passing off the very core of it--the actual definition of a human--as a mere detail. If you have a scientific definition of that then I'm all ears.


Well there are also common sense tests. Go with the hypothetical, you can only save one from a burning building, a 6 week old baby or a test tube with a fertilized human egg. Which do you save? An 18 year old unconscious woman or a test tube with a fertilized human egg. Which do you save?

If you pick the newborn or the woman over the test tube, you're saying they're different and one is more important.

If you're saying you're indifferent, I'm calling BS on that.

Still unsure? Make that 6 week old your baby and the 18 year old your daughter and the fertilized egg from you and your wife.

If you still say you're indifferent, and if you actually believe it, you need serious help.

We choose to make it difficult by adding the metaphysical, matters of faith, to the discussion. The mere concept of a soul is a matter of faith. The law should not be focused on faith as it imposes one belief for the sake of another's.

Paul C
Paul C

@Real -- Well, the definition of human life has to come from somewhere. And again, Christianity is not specific about the beginning of human life either. Leading Christians have interpreted the Bible to mean God endows a new human soul at conception.

Call it Christianity specifically, or a matter of faith in general, there is no science that tells us when a person is a person.

I agree the Constitution doesn't tell us anything, but again, it's arbitrary that the default must mean birth (although I suspect that's how the FFs would have said in the 1700s before there was any such thing as Republicans or the Moral Majority).

In order to not establish a specific religion, I suppose one would need to take a poll to see when people thought human life begins. Row v. Wade punted this decision under the guise of "privacy" which I agree is a bit odd, but in a way it's a "private" decision.

If you ever get a chance at a time machine, remind the Founding Fathers to write something down and solve this question once and for all.