More quietly, abortion opponents are confident the next justice will be a vote to uphold additional restrictions on abortion, if not to actually jettison the landmark Roe decision.
Just one member of the current court, Clarence Thomas, is on record in support of overturning the 45-year-old high court ruling. And justices often are cautious about blowing up precedents. Still, a more conservative court may be more willing to chip away at abortion rights by upholding state restrictions that Kennedy and the four liberal justices would have been likely to strike down.
The issue is at the forefront of the emerging nomination fight because the nine-member court has been so closely divided on abortion, and Kennedy has been a crucial fifth vote.
At present, lawmakers in several Republican-led states have passed aggressive regulations. They could be emboldened by the prospect of a friendlier court. Among the issues currently in the courts are Arkansas’ regulation of abortion pills and a Kentucky law that would ban a common procedure for second-trimester abortions.
Trump himself has predicted Roe would be overturned because “I am putting pro-life justices on the court.”
At a rally in front of the court Thursday, speaker after speaker pointed to abortion as a way to rally opposition to the eventual nominee, who Trump has said will come from among 25 people he previously identified as candidates.
“He is going to put someone on the court who will be the fifth vote to criminalize abortion, punish women and throw them in jail,” declared Ilyse Hogue, president of NARAL Pro-Choice America.
Sen. Kirsten Gillibrand, D-N.Y., a potential presidential candidate in 2020 said, “President Trump has told you he’s going to nominate someone who will get rid of Roe v. Wade.”
A onetime supporter of abortion rights, Trump attracted support from social conservatives during the presidential campaign in large part because of his strong opposition to abortion.
But now, with a seat open and a golden opportunity to cinch conservative control of the high court, Trump’s supporters are downplaying the issue.
Leonard Leo, a Trump adviser on judicial nominations, said liberal groups bring out the abortion issue every time a Republican president gets to make a Supreme Court nomination, including when Ronald Reagan nominated Kennedy in 1987.
“You see this over and over again and it’s the usual rank speculation,” Leo said.
Whatever Trump said during his campaign, Leo said abortion did not come up in the president’s interviews with prospective nominees when he chose Justice Neil Gorsuch last year.
“The president has never asked a prospective nominee about Roe v. Wade or abortion in any way shape or form. He’s never discussed the issue with me. Period,” Leo said.
On the current court, in addition to Thomas’ outright opposition to Roe, Chief Justice John Roberts and Justice Samuel Alito have voted consistently to sustain abortion restrictions.
Gorsuch’s record on abortion is sparse. But abortion opponents were thrilled to see him join the court, and they have high hopes for Kennedy’s replacement.
“I think the president’s list is a very strong list. I’m convinced the people on this list are Gorsuch-like,” said Jeanne Mancini, president of the March for Life.
Steve Aden, general counsel of Americans United for Life, said he expects the nominee will be “somebody who reveres the Constitution like Gorsuch and Antonin Scalia.”
Aden described Kennedy as having been “all over the map” when it came to abortion. In the court’s most recent major abortion ruling, Kennedy was in the majority to strike down regulations on Texas abortion clinics. Roberts, Thomas and Alito dissented.