Roundups Politics

Justice Scalia’s Death Separates Presidential Candidates on Supreme Court Nominations

Ally Boguhn

Saturday night’s Republican presidential debate, hosted by CBS News in South Carolina, took place just a few hours after news broke of Scalia’s death, offering a chance for the GOP to weigh in on the matter.

The unexpected death of Supreme Court Justice Antonin Scalia on Saturday reinvigorated an ongoing push among presidential candidates to address how they would handle Court nominations should they be elected.

Saturday night’s Republican presidential debate, hosted by CBS News in South Carolina, took place just a few hours after news broke of Scalia’s death, offering a chance for the GOP to weigh in on the matter. When moderator John Dickerson prompted the candidates to speak about what they thought should happen next, most asserted that the president should not make a new nomination, and instead leave the matter up to his successor.

Donald Trump fielded the first question on the topic, telling Dickerson that if he were president, he would “certainly want to try and nominate a justice” given the opportunity, but that the Senate should work to block whomever President Obama put forward.

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Trump went on to pitch the nominations of conservative federal judges Diane Sykes and Bill Pryor for the vacancy, both of whom have expressed anti-choice sentiments in the past.

Sykes, a judge on the U.S. Court of Appeals for the Seventh Circuit, once sympathized with anti-choice protesters whom she sentenced to 60 days in jail for blocking access to a clinic, saying of those charged, “I do respect you a great deal for having the courage of your convictions and for the ultimate goals that you sought to achieve by this conduct.” Her nomination to the Seventh Circuit Court of Appeals was opposed by a number of reproductive health advocates, including NARAL Pro-Choice America, the National Abortion Federation, Planned Parenthood Federation of America, and the Religious Coalition for Reproductive Choice.

Pryor is a judge for the U.S. Court of Appeals for the 11th Circuit. As Gabriel Roth explained for Slate, Pryor’s appointment to the federal appeals court was originally blocked by Senate Democrats, “who cited his description of Roe v. Wade as ‘the worst abomination in the history of constitutional law,’” before George W. Bush subsequently “installed him in a recess appointment, bypassing the confirmation process.”

Trump has so far refused to say outright whether he would only nominate judges to the Supreme Court who would overturn Roe v. Wade, though he has argued that the landmark Supreme Court decision left the country “sliding toward a culture of death.”

The death of Scalia has also prompted Trump to speculate about the conspiracy theories being popularized by some conservative media outlets. On Monday, the host of radio show The Savage Nation alleged in an interview with Trump that Scalia’s death happened “under suspicious circumstances,” asking Trump whether he thought the justice had been “murdered.” Trump responded that while he couldn’t provide a definitive answer to whether he thought Scalia was murdered, he had “just heard” that “they found a pillow on [Scalia’s] face, which is a pretty unusual place to find a pillow.”

As Vox explained, “While the circumstances of Scalia’s death were somewhat unusual—he was pronounced dead over the phone—there’s little out of the ordinary about a 79-year-old man whose doctor reportedly said he had ‘several chronic conditions’ dying in his sleep.” Vox also pointed out that further reporting suggested the pillow was between Scalia’s head and the headboard.

The primary concern of Sen. Ted Cruz (TX) when it came to Scalia’s death was that it could endanger abortion restrictions across the country. “We are one justice away from a Supreme Court that will strike down every restriction on abortion adopted by the states,” Cruz told viewers at the debate. 

“The Senate needs to stand strong and say we’re not going to give up the U.S. Supreme Court for a generation by allowing Barack Obama to make one more liberal appointee,” Cruz added.

Cruz had noted his belief that Scalia should be replaced by the next president in a tweet earlier that night, in which he called Scalia an “American hero” and claimed that “we owe it to him” to ensure that Obama doesn’t decide who is nominated for the Court.

Following the debate, Cruz claimed that Trump could not be trusted to pick a Supreme Court justice. An ad released Monday by the Cruz campaign titled “Supreme Trust” featured footage of Trump in a 1999 interview on Meet the Press in which he called himself “very pro-choice.” The ad warned, “We cannot trust Donald Trump with these serious decisions” on “life, marriage [and] religious liberty.”

That same day, Cruz vowed when speaking with reporters in South Carolina to make the 2016 presidential election a “referendum” on the Supreme Court, claiming, according to Politicothat “Donald said his extreme, abortion-supporting sister [Maryanne Trump Barry, a judge on the U.S. Court of Appeals for the Third Circuit] would make a terrific Supreme Court Justice. If the people of South Carolina care about their constitutional rights, we’re one justice away from the Supreme Court writing the Second Amendment out of the Bill of Rights.”

Trump had already told ABC’s This Week on Sunday that he had been joking when he said last August that his sister would be a “phenomenal” choice for the Court, noting that it was “obviously a conflict” of interest for him.

Cruz has made a point of campaigning on a promise to nominate conservative justices to the Supreme Court. “Unlike the very fine individuals on that debate stage, I will be willing to spend whatever political capital is necessary, and sir I give you my word, every justice I put on that court will be a principled constitutionalist jurist with a proven record who will be faithful to the law and will not legislate from the bench,” Cruz said at a January campaign stop in Iowa, according to ThinkProgress.

During the debate, Ohio Gov. John Kasich said he wished “we hadn’t run so fast into politics” after the justice’s death, but nevertheless continued that Obama “should not move forward” with a nomination for replacement.

“I really wish the president would think about not nominating somebody. If you were to nominate somebody, let’s have him pick somebody that’s going to have unanimous approval, and such widespread approval across the country that this could happen without a lot of recrimination,” said Kasich. “I don’t think that’s going to happen, and I would like the president just to for once here put the country first.”

Earlier that evening, Kasich had released an initial statement on Scalia’s death that took no stance on whether Obama should nominate a replacement, instead focusing on what he deemed a “serious loss to our nation and the Court.”

Sen. Marco Rubio’s (R-FL) statement at the debate on Scalia’s passing also expressed condolences. Rubio has noted before that it is the “next president” who should nominate Scalia’s successor, a claim that Rubio reiterated later during the debate.

“I do not believe the president [Obama] should appoint someone,” said Rubio. “And it’s not unprecedented. In fact, it’s been over 80 years since a lame-duck president has appointed a Supreme Court justice.”

PolitiFact later rated Rubio’s assertion that Obama’s nomination would lack precedence “mostly false,” explaining that President Ronald Reagan had nominated Justice Anthony Kennedy during Reagan’s second term and confirmed Kennedy during Reagan’s final year in office.

Rubio told the Christian Broadcasting Network in December that nominating judges to the Supreme Court will be “one of the biggest things the next president is going to do,” elaborating that the Court would need justices who understood that “there is no way that you can read that Constitution and deduce from it that there is a constitutional right to an abortion.”

Former Florida Gov. Jeb Bush dismissed the notion during the debate that it wasn’t within Obama’s rights to pick a new member of the Court. “Of course, the president … has every right to nominate Supreme Court justices,” Bush said.

However, Bush expressed doubts that the president could find a replacement who would be approved by the consensus in the Senate.

“I’m an Article II guy in the Constitution,” Bush said, referencing the portion of the document that grants a president executive power. “We’re running for the president of the United States. We want a strong executive for sure. But in return for that, there should be a consensus orientation on that nomination, and there’s no doubt in my mind that Barack Obama will not have a consensus pick when he submits that person to the Senate.”

Bush doubled down on that stance Sunday during an appearance on CNN’s State of the Union. Speaking with network host Dana Bash, Bush again acknowledged that the president was fully within his rights to nominate a justice at any point during his term. “That’s his prerogative, he has every right to do it,” the presidential candidate said, before noting that “the Senate has every right to not confirm that person.”

“Given his choices of Supreme Court justices in the past, the Senate of the United States should not confirm someone who is out of the mainstream,” Bush concluded.

While Democrats expressed their condolences upon learning of the death of Scalia, they also condemned members of the GOP for claiming it would be inappropriate for Obama to move forward with nominating a new justice.

“My thoughts and prayers are with the family and friends of Justice Scalia as they mourn his sudden passing. I did not hold Justice Scalia’s views, but he was a dedicated public servant who brought energy and passion to the bench,” said Hillary Clinton in a Saturday evening statement.

“The Republicans in the Senate and on the campaign trail who are calling for Justice Scalia’s seat to remain vacant dishonor our Constitution. The Senate has a constitutional responsibility here that it cannot abdicate for partisan political reasons,” continued Clinton’s statement. 

Later that night, Clinton elaborated, addressing GOP legislators’ intention to block or delay a Supreme Court nominee. “Barack Obama is president of the United States until Jan. 20, 2017, and that is a fact, my friends, whether the Republicans like it or not,” Clinton told the crowd while speaking at a Democratic dinner in Denver, Colorado, according to the Huffington Post. “Elections have consequences.”

“Some might say that a confirmation process would take too long for this president to complete during his remaining days in office,” said Clinton. “But the longest successful confirmation in the past four decades was Clarence Thomas, and that took roughly 100 days,” she continued, pointing out that the president has substantially more time than that left in office.

Speaking in East Las Vegas, Nevada on Sunday, Clinton discussed the importance of appointing a new justice given that the Court has agreed to review the case against Obama’s expansion of the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA) program.

“In the Supreme Court, because of his passing, there will most likely be a tie, four-to-four, on important issues that affect so many people in our country. And the most important is the decision about President Obama’s actions” under these programs, Politico reported Clinton as saying.

“In the case of the decision regarding DACA and DAPA, if there is no new justice appointed, then as with other cases before the court, the decision that was decided will stay in place” in the case of a tie, the former secretary of state continued, referring to the Fifth Circuit Court of Appeals’ decision to pause Obama’s actions on immigration. “And that was a bad decision, I disagreed with it, I don’t think it was the right legal interpretation, I believe President Obama had the authority to do what he did.”

“While I differed with Justice Scalia’s views and jurisprudence, he was a brilliant, colorful and outspoken member of the Supreme Court,” Sen. Bernie Sanders (D-VT) said Saturday in a brief statement expressing his condolences to Scalia’s loved ones. “My thoughts and prayers are with his family and his colleagues on the court who mourn his passing.”

Later that night, Sanders joined Clinton in criticizing Republicans for speaking out against the president’s intent to nominate a replacement for Scalia.

“It appears that some of my Republican colleagues in the Senate have a very interesting view of the Constitution of the United States,” Sanders said in Denver, according to an ABC News report. “Apparently they believe that the Constitution does not allow a Democratic president to bring forth a nominee to replace Justice Scalia. I strongly disagree with that.”

News Politics

Tim Kaine Changes Position on Federal Funding for Abortion Care

Ally Boguhn

The Obama administration, however, has not signaled support for rolling back the Hyde Amendment's ban on federal funding for abortion care.

Sen. Tim Kaine (D-VA), the Democratic Party’s vice presidential candidate, has promised to stand with nominee Hillary Clinton in opposing the Hyde Amendment, a ban on federal funding for abortion care.

Clinton’s campaign manager, Robby Mook, told CNN’s State of the Union Sunday that Kaine “has said that he will stand with Secretary Clinton to defend a woman’s right to choose, to repeal the Hyde amendment,” according to the network’s transcript.

“Voters can be 100 percent confident that Tim Kaine is going to fight to protect a woman’s right to choose,” Mook said.

The commitment to opposing Hyde was “made privately,” Clinton spokesperson Jesse Ferguson later clarified to CNN’s Edward Mejia Davis.

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Kaine’s stated support for ending the federal ban on abortion funding is a reversal on the issue for the Virginia senator. Kaine this month told the Weekly Standard  that he had not “been informed” that this year’s Democratic Party platform included a call for repealing the Hyde Amendment. He said he has “traditionally been a supporter of the Hyde amendment.”

Repealing the Hyde Amendment has been an issue for Democrats on the campaign trail this election cycle. Speaking at a campaign rally in New Hampshire in January, Clinton denounced Hyde, noting that it made it “harder for low-income women to exercise their full rights.”

Clinton called the federal ban on abortion funding “hard to justify” when asked about it later that month at the Brown and Black Presidential Forum, adding that “the full range of reproductive health rights that women should have includes access to safe and legal abortion.”

Clinton’s campaign told Rewire during her 2008 run for president that she “does not support the Hyde amendment.”

The Democratic Party on Monday codified its commitment to opposing Hyde, as well as the Helms Amendment’s ban on foreign assistance funds being used for abortion care. 

The Obama administration, however, has not signaled support for rolling back Hyde’s ban on federal funding for abortion care.

When asked about whether the president supported the repeal of Hyde during the White House press briefing Tuesday, Deputy Press Secretary Eric Schultz said he did not “believe we have changed our position on the Hyde Amendment.”

When pushed by a reporter to address if the administration is “not necessarily on board” with the Democratic platform’s call to repeal Hyde, Schultz said that the administration has “a longstanding view on this and I don’t have any changes in our position to announce today.”

News Law and Policy

Texas Lawmaker’s ‘Coerced Abortion’ Campaign ‘Wildly Divorced From Reality’

Teddy Wilson

Anti-choice groups and lawmakers in Texas are charging that coerced abortion has reached epidemic levels, citing bogus research published by researchers who oppose legal abortion care.

A Texas GOP lawmaker has teamed up with an anti-choice organization to raise awareness about the supposed prevalence of forced or coerced abortion, which critics say is “wildly divorced from reality.”

Rep. Molly White (R-Belton) during a press conference at the state capitol on July 13 announced an effort to raise awareness among public officials and law enforcement that forced abortion is illegal in Texas.

White said in a statement that she is proud to work alongside The Justice Foundation (TJF), an anti-choice group, in its efforts to tell law enforcement officers about their role in intervening when a pregnant person is being forced to terminate a pregnancy. 

“Because the law against forced abortions in Texas is not well known, The Justice Foundation is offering free training to police departments and child protective service offices throughout the State on the subject of forced abortion,” White said.

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White was joined at the press conference by Allan Parker, the president of The Justice Foundation, a “Christian faith-based organization” that represents clients in lawsuits related to conservative political causes.

Parker told Rewire that by partnering with White and anti-choice crisis pregnancy centers (CPCs), TJF hopes to reach a wider audience.

“We will partner with anyone interested in stopping forced abortions,” Parker said. “That’s why we’re expanding it to police, social workers, and in the fall we’re going to do school counselors.”

White only has a few months remaining in office, after being defeated in a closely contested Republican primary election in March. She leaves office after serving one term in the state GOP-dominated legislature, but her short time there was marked by controversy.

During the Texas Muslim Capitol Day, she directed her staff to “ask representatives from the Muslim community to renounce Islamic terrorist groups and publicly announce allegiance to America and our laws.”

Heather Busby, executive director of NARAL Pro-Choice Texas, said in an email to Rewire that White’s education initiative overstates the prevalence of coerced abortion. “Molly White’s so-called ‘forced abortion’ campaign is yet another example that shows she is wildly divorced from reality,” Busby said.

There is limited data on the how often people are forced or coerced to end a pregnancy, but Parker alleges that the majority of those who have abortions may be forced or coerced.

‘Extremely common but hidden’

“I would say that they are extremely common but hidden,” Parker said. “I would would say coerced or forced abortion range from 25 percent to 60 percent. But, it’s a little hard be to accurate at this point with our data.”

Parker said that if “a very conservative 10 percent” of the about 60,000 abortions that occur per year in Texas were due to coercion, that would mean there are about 6,000 women per year in the state that are forced to have an abortion. Parker believes that percentage is much higher.

“I believe the number is closer to 50 percent, in my opinion,” Parker said. 

There were 54,902 abortions in Texas in 2014, according to recently released statistics from the Texas Department of State Health Services (DSHS). The state does not collect data on the reasons people seek abortion care. 

White and Parker referenced an oft cited study on coerced abortion pushed by the anti-choice movement.

“According to one published study, sixty-four percent of American women who had abortions felt forced or unduly pressured by someone else to have an unwanted abortion,” White said in a statement.

This statistic is found in a 2004 study about abortion and traumatic stress that was co-authored by David Reardon, Vincent Rue, and Priscilla Coleman, all of whom are among the handful of doctors and scientists whose research is often promoted by anti-choice activists.

The study was cited in a report by the Elliot Institute for Social Sciences Research, an anti-choice organization founded by Reardon. 

Other research suggests far fewer pregnant people are coerced into having an abortion.

Less than 2 percent of women surveyed in 1987 and 2004 reported that a partner or parent wanting them to abort was the most important reason they sought the abortion, according to a report by the Guttmacher Institute.

That same report found that 24 percent of women surveyed in 1987 and 14 percent surveyed in 2004 listed “husband or partner wants me to have an abortion” as one of the reasons that “contributed to their decision to have an abortion.” Eight percent in 1987 and 6 percent in 2004 listed “parents want me to have an abortion” as a contributing factor.

‘Flawed research’ and ‘misinformation’  

Busby said that White used “flawed research” to lobby for legislation aimed at preventing coerced abortions in Texas.

“Since she filed her bogus coerced abortion bill—which did not pass—last year, she has repeatedly cited flawed research and now is partnering with the Justice Foundation, an organization known to disseminate misinformation and shameful materials to crisis pregnancy centers,” Busby said.  

White sponsored or co-sponsored dozens of bills during the 2015 legislative session, including several anti-choice bills. The bills she sponsored included proposals to increase requirements for abortion clinics, restrict minors’ access to abortion care, and ban health insurance coverage of abortion services.

White also sponsored HB 1648, which would have required a law enforcement officer to notify the Department of Family and Protective Services if they received information indicating that a person has coerced, forced, or attempted to coerce a pregnant minor to have or seek abortion care.

The bill was met by skepticism by both Republican lawmakers and anti-choice activists.

State affairs committee chairman Rep. Byron Cook (R-Corsicana) told White during a committee hearing the bill needed to be revised, reported the Texas Tribune.

“This committee has passed out a number of landmark pieces of legislation in this area, and the one thing I think we’ve learned is they have to be extremely well-crafted,” Cook said. “My suggestion is that you get some real legal folks to help engage on this, so if you can keep this moving forward you can potentially have the success others have had.”

‘Very small piece of the puzzle of a much larger problem’

White testified before the state affairs committee that there is a connection between women who are victims of domestic or sexual violence and women who are coerced to have an abortion. “Pregnant women are most frequently victims of domestic violence,” White said. “Their partners often threaten violence and abuse if the woman continues her pregnancy.”

There is research that suggests a connection between coerced abortion and domestic and sexual violence.

Dr. Elizabeth Miller, associate professor of pediatrics at the University of Pittsburgh, told the American Independent that coerced abortion cannot be removed from the discussion of reproductive coercion.

“Coerced abortion is a very small piece of the puzzle of a much larger problem, which is violence against women and the impact it has on her health,” Miller said. “To focus on the minutia of coerced abortion really takes away from the really broad problem of domestic violence.”

A 2010 study co-authored by Miller surveyed about 1,300 men and found that 33 percent reported having been involved in a pregnancy that ended in abortion; 8 percent reported having at one point sought to prevent a female partner from seeking abortion care; and 4 percent reported having “sought to compel” a female partner to seek an abortion.

Another study co-authored by Miller in 2010 found that among the 1,300 young women surveyed at reproductive health clinics in Northern California, about one in five said they had experienced pregnancy coercion; 15 percent of the survey respondents said they had experienced birth control sabotage.

‘Tactic to intimidate and coerce women into not choosing to have an abortion’

TJF’s so-called Center Against Forced Abortions claims to provide legal resources to pregnant people who are being forced or coerced into terminating a pregnancy. The website includes several documents available as “resources.”

One of the documents, a letter addressed to “father of your child in the womb,” states that that “you may not force, coerce, or unduly pressure the mother of your child in the womb to have an abortion,” and that you could face “criminal charge of fetal homicide.”

The letter states that any attempt to “force, unduly pressure, or coerce” a women to have an abortion could be subject to civil and criminal charges, including prosecution under the Federal Unborn Victims of Violence Act.

The document cites the 2007 case Lawrence v. State as an example of how one could be prosecuted under Texas law.

“What anti-choice activists are doing here is really egregious,” said Jessica Mason Pieklo, Rewire’s vice president of Law and the Courts. “They are using a case where a man intentionally shot his pregnant girlfriend and was charged with murder for both her death and the death of the fetus as an example of reproductive coercion. That’s not reproductive coercion. That is extreme domestic violence.”

“To use a horrific case of domestic violence that resulted in a woman’s murder as cover for yet another anti-abortion restriction is the very definition of callousness,” Mason Pieklo added.

Among the other resources that TJF provides is a document produced by Life Dynamics, a prominent anti-choice organization based in Denton, Texas.

Parker said a patient might go to a “pregnancy resource center,” fill out the document, and staff will “send that to all the abortionists in the area that they can find out about. Often that will stop an abortion. That’s about 98 percent successful, I would say.”

Reproductive rights advocates contend that the document is intended to mislead pregnant people into believing they have signed away their legal rights to abortion care.

Abortion providers around the country who are familiar with the document said it has been used for years to deceive and intimidate patients and providers by threatening them with legal action should they go through with obtaining or providing an abortion.

Vicki Saporta, president and CEO of the National Abortion Federation, previously told Rewire that abortion providers from across the country have reported receiving the forms.

“It’s just another tactic to intimidate and coerce women into not choosing to have an abortion—tricking women into thinking they have signed this and discouraging them from going through with their initial decision and inclination,” Saporta said.

Busby said that the types of tactics used by TFJ and other anti-choice organizations are a form of coercion.

“Everyone deserves to make decisions about abortion free of coercion, including not being coerced by crisis pregnancy centers,” Busby said. “Anyone’s decision to have an abortion should be free of shame and stigma, which crisis pregnancy centers and groups like the Justice Foundation perpetuate.”

“Law enforcement would be well advised to seek their own legal advice, rather than rely on this so-called ‘training,” Busby said.