Ginsburg death sets up fight on abortion

Opponents see chance to reverse Roe vs. Wade

In a political year dominated by a deadly pandemic and a fight for racial equality, the death of Supreme Court Justice Ruth Bader Ginsburg may rocket the abortion question back to the center of American consciousness, with the future of that constitutional right hanging in the balance in the selection of her successor.

“I think there is hope,” Alexandra Snyder, executive director of Life Legal Defense Foundation, an antiabortion law firm based in Napa, said Saturday.

Lisa Mastubara, general counsel with Planned Parenthood Affiliates of California, countered that what is now at stake “is really the fate of our freedoms. Human rights.”

One day after Ginsburg died of pancreatic cancer, President Trump said Saturday he will announce a “very talented” woman in the coming week as his nominee to the court. If Trump succeeds in adding his third justice in four years, the ninemember court will be left with three liberals: Elena Kagan, Sonia Sotomayor

and Stephen Breyer.

Abortion opponents are eager to replace Ginsburg — for whom the right to terminate a pregnancy signified no less than “women’s equality with man” — and see a historic opportunity to reverse Roe vs. Wade, the 1973 decision that remains perhaps the most politically charged issue the high court confronts.

The ability to shape the high court has been crucial to Trump’s popularity in the GOP. It helps explain what ties evangelicals and others so strongly to a president who slings insults and untruths, divorced twice and bragged about sexually assaulting women.

Michele Dauber, a Stanford Constitutional law professor and expert in gender equity, said the prospect of overturning Roe is why many conservatives “have been putting up with Donald Trump for four years, gritting their teeth.”

“It’s not an exaggeration to say that, from a political perspective, the Republicans made a deal with the devil in order to hold the courts,” Dauber said. She said the additions of Neil Gorsuch and Brent Kavanaugh were conservative victories, but that filling Ginsburg’s seat “was their pot of gold at the end of the rainbow.”

On Saturday, Republican Sen. Josh Hawley of Missouri, who is on the Judiciary Committee that conducts confirmation hearings for Supreme Court nominees, told the Washington Post he expects Trump’s nominee to have a clear track record opposing Roe vs. Wade.

“I have every expectation that they will nominate someone who will meet that criteria,” he said, noting that no one in the administration has contradicted him on that point. “What I want to see from the nominee is some indication — in the record, in the public domain — that they acknowledge and understand that Roe was wrongly decided.”

In June, Chief Justice John Roberts surprised conservatives and liberals alike by casting the swing vote in a 54 decision that struck down a Louisiana law that required abortion providers to get hospital admitting privileges. But Roberts also noted that laws differ from state to state, and left open the option for other states to pass similar abortion restrictions.

In many ways, the left long ago lost the debate over abortion, said Joan Williams, a feminist legal scholar at UC Hastings College of the Law in San Francisco, noting that 89% of U.S. counties lack a clinic able to terminate a pregnancy. If Roe were overturned, states would decide abortion rights, most likely leaving California women with access to abortions.

Nationwide, the political consequences are

huge. With Ginsburg’s death, the matter of abortion rights can now compete with the pandemic as the most significant issue on the minds of voters, some observers said.

“Most importantly for Donald Trump, this allows him to take the focus off his failures and onto political differences between the parties,” said Henry Brady, dean of the Goldman School of Public Policy at UC Berkeley.

Trump has gained

little seeking to contrast “law and order” Republicans against “socialist” Democrats, he said. “But he might make some headway with the abortion issue, where the differences really are clearcut and ( Joe) Biden will be hardput to do anything but indicate that he is prochoice.”

Abortion rights supporters, noting the many Republicans in their ranks, say they are prepared for the fight of their life. About 6 in 10 Americans surveyed by

the Pew Research Center last year said abortion should be legal in all or most cases.

“This is front and center because of Justice Ginsburg and the role she played,” Marge Baker, executive vice president of People for the American Way, a progressive advocacy group, told The Chronicle. “It’s very clear.”

Baker called it obscene that Senate Majority Leader Mitch McConnell pledged to move forward with a Supreme Court

nominee this close to the election, after blocking President Barack Obama’s nominee in 2016.

Republicans hold what could be a decisive 5347 majority in the Senate. Even if Biden won the presidency on Nov. 3, and even if Democrats flipped the Senate, Republicans would remain in power until Jan. 20, inauguration day. A Trump nominee could expect confirmation

unless four Republicans voted to oppose.

Meanwhile, 17 abortion access cases are in Circuit Courts, one step from the Supreme Court. Ginsburg won’t be there to opine, and many abortion rights supporters wondered Saturday what her absence will mean in the years to come.

“It is essential to woman’s equality with man that she be the decision maker, that her choice be

controlling,” Ginsburg said of abortion during her 1993 Senate confirmation hearing “If you impose restraints that impede her choice, you are disadvantaging her because of her sex.”

Nanette Asimov is a San Francisco Chronicle staff writer. Email: nasimov@ sfchronicle.com Twitter: @NanetteAsimov