Abortion Doesn't Matter

Thirty years ago it was the most important litmus test facing Supreme Court nominees, but The Daily Beast's Adam Winkler says it won’t play a major role in Kagan’s confirmation hearings—or American elections. Plus, read our full coverage of Elena Kagan

In the coming confirmation hearings for President Obama’s Supreme Court nominee Elena Kagan, one issue that will not be front-and-center is abortion. In the 1980s and '90s, every Supreme Court nominee faced a litmus test of sorts: How would he rule on women’s right to choose? Robert Bork was rejected after he said there was no right of privacy in the Constitution; his replacement, Anthony Kennedy said the opposite and was confirmed. Clarence Thomas laughably said he had never thought about abortion, but that was enough to help him squeak by.

Abortion hasn’t just become less prominent in Supreme Court confirmation hearings, it also has become less prominent in electoral politics

Lately, however, the abortion question has been pushed to the sidelines. No doubt some senators will still be focused on Kagan’s views of abortion and will try to pin her down on whether she would vote to overturn Roe v. Wade, the landmark decision recognizing women’s privacy right to control childbearing. And some liberals will be upset to learn that, as a Clinton aide, she advised the president to support a ban on late-term abortions for strategic political reasons. But the debate over Kagan will not turn on her views on abortion. Nor is abortion quite the hot-button issue in American politics it used to be.

• Read Our Full Coverage of Elena KaganWhatever happened to abortion?

In Sonia Sotomayor’s confirmation hearings last year, few senators focused on her potential position on abortion. Instead, the debate centered on a controversial statement she said about “wise Latinas” and whether she thought “empathy” should guide judicial decision-making. Samuel Alito and John Roberts also faced few questions that were aimed at uncovering their views on abortion. Kagan’s hearings will likely focus on her qualifications and her stance on the military’s policy against gay service members. Abortion, once the animating issue of confirmation debates, will barely be discussed.

Some might say that the only thing that’s changed is that senators have tired of trying to pin down nominees on their views of abortion because nominees have perfected the art of avoiding answering the abortion question directly. Now when the abortion issue comes up, no one makes Bork’s mistake. If you keep quiet, you can squeak through without having to reveal your views.

But the real cause is something more profound and it relates to the status of abortion as a political issue more generally. Abortion hasn’t just become less prominent in Supreme Court confirmation hearings, it also has become less prominent in electoral politics. In the last three presidential elections, the abortion issue was only a secondary issue. Abortion politics have changed radically and you can point the finger at the Supreme Court.

In 1992, the Supreme Court upheld the right to choose abortion in a case called Planned Parenthood v. Casey. Yet that decision said that states have far more leeway to impose limits on abortion than Roe v. Wade allowed. As a result, abortion politics shifted from efforts to overturn Roe completely to abortion restrictions, like late-term abortion bans, mandatory ultrasounds, parental consent laws, and waiting periods. Under Roe those laws would be struck down but under Casey they were allowed. Anti-choice advocates realized that their time and energy was better spent on abortion restrictions the courts would uphold rather than complete bans on abortion that the courts would invalidate.

Pro-choice advocates originally celebrated Casey but have since come to understand the doors that decision opened up for new, burdensome restrictions. One effect of those open doors, however, has been to release the pressure on overturning Roe. What was once a vigorous battle over abortion has become a cold war: each side feels just as strong about the issue as ever, but direct conflict has been reduced.

The new cold war over abortion doesn’t benefit women seeking abortion, who now must overcome an array of hurdles that have been placed in their way. Nor are the unborn helped much from regulations that, while more difficult for women, won’t stop very many women from ultimately obtaining an abortion.

There is, however, one very small group of people helped by the transformation in abortion politics: Supreme Court nominees like Elena Kagan.

Adam Winkler is a constitutional law professor at UCLA.