Most Senate Republicans are avoiding mere mention of Roe v. Wade during this week’s hearings on whether Brett Kavanaugh should become a Supreme Court justice. Sen. Lindsey Graham isn’t one of them.
The South Carolina Republican is readily, even eagerly, wading into the abortion debate. A senior member of the Senate Judiciary Committee who could become chairman in 2019, Graham used his allotted hearing speaking time over the past three days to remind the public that the Supreme Court could soon hear a case triggering the reversal of the 1973 ruling that guaranteed a woman’s constitutional right to terminate a pregnancy.
It’s a potentially risky gambit for Graham’s party. Republicans have sought to neutralize controversy surrounding Kavanaugh, going through great pains to avoid saying he would become the deciding vote to outlaw abortion. So far, few Senate Judiciary Committee Republicans have brought up the landmark case at all or spoken about it at length.
Democrats, meanwhile, have been relentlessly painting Kavanaugh as an existential threat to women’s rights. Graham continuing to engage the nominee on Roe v. Wade is all the proof Democrats need that Republicans enthusiastically support Kavanaugh because he’s the vote they’ve sought for decades that will reverse the decision.
“Donald Trump made it clear that Kavanaugh would be the deciding vote to overturn Roe v. Wade automatically, in his words,” said Dana Singiser, Planned Parenthood Federation of America’s vice president for public policy and government relations. “It’s been confirmed by ... Sen. Lindsey Graham.”
Asked why he was emphasizing abortion during his questioning of Kavanaugh, Graham said he wanted “the country” to have a debate about the legal precedent that led to Roe v. Wade, which he called a slippery slope.
Graham’s strategy, however, is ultimately one that will endear him to his conservative base in South Carolina, where he is likely in 2020 to face a primary challenge from a far-right candidate critical of the incumbent’s frequent teamwork with Democrats.
“It’s amazing watching Lindsey morph into this ideologically pure, ultra-right wing conservative right before an election season,” Tyler Jones, a longtime Democratic strategist in South Carolina, said last year, just as Graham was becoming a Trump ally. “And then it’s even more amazing watching him morph back into an independent-minded moderate after the election’s over.”
On Thursday afternoon, in a nod to that more temperate side Jones cited, Graham told McClatchy he could understand the abortion rights point of view: “On a good day, abortion is hard. This is a tough choice for people. I can imagine the woman’s point of view very much. This is not easy.”
But Graham also didn’t hesitate to confirm he was using his line of questioning at the Kavanaugh hearings to speak for the anti-abortion community, saying the feedback from that constituency has been strong and positive.
He also said the Supreme Court would “definitely” some day hear a challenge to states that have passed laws banning abortion after 20 weeks, the point at which some medical experts say a fetus can begin to feel pain. Graham has been a champion since 2013 of the so-called “Pain-Capable Unborn Child Protection Act” to impose this ban on the federal level.
Graham said he didn’t know how the Supreme Court would rule on such a case. Yet while Kavanaugh has been careful not to say how he would rule on Roe v. Wade, the decision’s most vocal supporters and opponents say his record is clear that he would likely vote to strike it down — and vote against a challenge to a 20-week abortion ban, too.
On Tuesday, the first of four scheduled days of Kavanaugh confirmation hearings, Graham said Democrats were hypocrites to be angry that Trump promised to appoint an anti-abortion Supreme Court justice when 2016 Democratic nominee Hillary Clinton promised to appoint an abortion rights supporter.
On Wednesday, Graham encouraged Kavanaugh to agree with the statement that Supreme Court justices couldn’t just say, “What are you doing for lunch? Let’s overrule Roe v. Wade.” Graham then prompted Kavanaugh to affirm that there was a legal process by which established precedent can be overturned. The two men essentially laid out a road map for doing just that.
On Thursday, Graham used his allotted speaking time to build his own case that there was nothing in the Constitution that specifically addresses abortion.
He worked with Kavanaugh to point out that Supreme Court justices in 1973 found a woman’s right to an abortion lay in the “penumbra of rights” around the definition of “liberty,” which can be redefined at any time depending on who is sitting on the bench.
Over the course of this back-and-forth, Graham also suggested — without mentioning his 20-week abortion ban bill specifically — that the Roe v. Wade ruling made it difficult for states to pass laws that roll back abortion rights.
“You got one word (liberty) that has opened up the ability for five people (on the Supreme Court) to tell everybody elected in the country, ‘You can’t go there,’ that this is off limits in the democratic process, whether you agree with Roe v. Wade or not,” Graham said.
Later, Graham told McClatchy he wanted to defend legal scholars who argue Roe v. Wade relied too heavily on an expansive definition of “liberty.”
He also wanted to show Democrats that such a definition sets dangerous legal precedent for countless other cases that could come before the court, or have already — just look, he said, at the 2010 “Citizens United” campaign finance ruling Democrats mostly hate.
He conceded he was defending defenders of Roe v. Wade, too.
“There is a split in the legal community about how sound is this idea,” Graham said. “I’m trying to say, ‘you can be concerned about Roe v. Wade and not be a neanderthal.’”