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For women senators, court nomination touches a very personal issue

As the Senate weighs a nominee to the Supreme Court, the stakes look especially high for abortion rights. An important change since 1973: A record number of senators are women.

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A demonstrator protested in front of the Supreme Court as President Trump announced Judge Brett Kavanaugh as his Supreme Court nominee on July 9. Some analysts say a new conservative justice could provide enough votes to overturn the landmark Roe v. Wade ruling on abortion.

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In the 1960s, Sen. Dianne Feinstein was a member of a California board that set sentences of six months to 10 years for doctors performing abortions, which were illegal at the time.

“I saw some pretty horrendous things in my day, someone killing themselves because they didn’t want to tell their parents [they were pregnant], and that made a deep dent on me,” Senator Feinstein says. Her experience led her to conclude that the law should change, and “fortunately it did.” With the 1973 Supreme Court ruling in Roe v. Wade, abortion became legal across the land.

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For women of the Senate like Feinstein, now the ranking Democrat on the Senate Judiciary Committee, the consideration of Supreme Court nominee Brett Kavanaugh is a moment where the personal and political intersect, often in deeply meaningful ways. When the high court handed down its landmark abortion ruling, there was not a single woman senator in that chamber. Now there are a record 23 – 17 Democrats and six Republicans, with most of them supporting abortion rights.

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Yet even with their larger numbers, it's not clear if women senators will become a pivotal coalition that blocks the confirmation of Judge Kavanaugh to the high court. Democrats such as Feinstein fear he will provide the swing vote to overturn Roe v. Wade if he gets the chance.

U.S. Senate Judiciary Committee Ranking Democratic Member Senator Dianne Feinstein questions FBI Director Christopher Wray and U.S. Department of Justice Inspector General Michael Horowitz during a Judiciary Committee hearing “Examining the Inspector General’s First Report on Justice Department and FBI Actions in Advance of the 2016 Presidential Election” on Capitol Hill in Washington, June 18, 2018.
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Her colleague Sen. Patty Murray (D) of Washington is equally concerned, and like Feinstein also had a formative experience with the issue. When she was in college in the pre-Roe days, she had a friend who was raped on a date, returning that night devastated and distraught. Several months later the friend found out she was pregnant. She sought out a “back alley” doctor, who so botched the procedure that she could not have children.

The senator describes this as a “real turning point,” realizing that “this was not how we should be treating women.” Then came the Roe decision. Now she says she is “looking at a future court where five men can turn this around and say to all the women of this country, you don’t have a decision you can make anymore, you cannot be safe, you cannot be healthy, you cannot make this decision on your own.”

The battle for 51 votes

Democrats are rallying the country in opposition to the Kavanaugh nomination on this and two other key issues – health care and presidential powers. Outside groups on both sides of the abortion debate have also started a pitched and expensive advertising and grassroots battle aimed at potential “swing senators” in the chamber that is narrowly controlled by Republicans 51-49 – with a key member, Sen. John McCain (R) of Arizona, absent since the start of the year. As of last year, when Republicans changed the rules, it only requires a majority to confirm a Supreme Court justice.

Targeted are three Democrats in red states that President Trump handily carried and who broke with their party last year to confirm Justice Neil Gorsuch. Also in the crosshairs: pro-abortion-rights Republicans Lisa Murkowski of Alaska and Susan Collins of Maine, who last year bucked their party to block GOP repeal of the Affordable Care Act. A few others will find themselves under heavy pressure – including Sen. Doug Jones, the Democrat who pulled off an upset victory in crimson Alabama last year. He may not be up for re-election, but this will be a crucial vote for the newly minted senator, who supports abortion rights.

Sen. Heidi Heitkamp, D-N.D., left, and Sen. Lisa Murkowski, R-Alaska, arrive to vote on a bill to expand private care for military veterans as an alternative to the troubled Veterans Affairs health system, on Capitol Hill in Washington, Wednesday, May 23, 2018.
J. Scott Applewhite/AP

Also under scrutiny, of course, is the record of Judge Kavanaugh, a Yale graduate who served 12 years on the US Circuit Court of Appeals for the District of Columbia and in the administration of President George W. Bush. At his 2006 hearing for the circuit court, he was grilled by Sen. Charles Schumer (D) of New York – now the leader of the Senate Democrats – about whether he considered Roe v. Wade to be “an abomination.” Kavanaugh answered that if confirmed to the circuit court, he would follow the ruling “faithfully and fully.” That would be “binding precedent,” he said. “It’s been decided by the Supreme Court.”

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Yet Democrats point to his recent opinions they consider damning, including, as Senator Schumer put it, Kavanaugh’s argument that “the Trump administration could keep a young girl in federal custody to prevent her from obtaining constitutionally protected health care.” He is referring to the case of a 17-year old unaccompanied immigrant minor who was held at the Texas border and sought an abortion. Kavanaugh dissented when the DC court allowed the teen to have an abortion, with part of his rationale being that the government has “permissible interests in favoring fetal life.” In June, the Supreme Court threw that decision out – though she had already had the abortion.

Feinstein wants to pore over Kavanaugh’s record before hearings begin – perhaps after Labor Day. But even so, the fact that the president promised to appoint an anti-abortion-rights nominee, and chose one who's been vetted by conservative groups committed to overturning the landmark ruling, is reason enough to assume that he would do so, Democrats say.

Senate women opposed to abortion

While most of the Senate women favor abortion rights, a handful do not. Sen. Joni Ernst (R) of Iowa says that for as long as she can remember, she’s been opposed to abortion.

“It’s never anything I had to think about. I’ve always been pro-life. I was just raised that way, and it’s what I believe. I’ve never held another position, it’s just who I am,” she says in brief interview. When the court ruled on Roe, she was approaching three years old.

Still, her standard answer to the “litmus test” question about a Supreme Court nominee and Roe is that there should not be one. A Republican colleague, who believes that life begins at conception, agrees.

“When I look at a nominee for the Supreme Court, I want a justice who is going to uphold the Constitution and the rule of law,” says Sen. Deb Fischer of Nebraska. “I don’t ask about specific issues. I do not have a litmus test.”

Senators Ernst and Fischer are reliable conservative votes who can be expected to back Kavanaugh. The game changers would be the GOP Senators Murkowski and Collins. In 2016, Murkowski ran ads in Alaska about women’s rights, points out Dianne Bystrom, director of the Carrie Chapman Catt Center for Women and Politics at Iowa State University in Ames. And Collins has backed Planned Parenthood, which last year honored her for her fight against Obamacare repeal.

But both senators look like they are leaning toward confirmation. While Collins said she would not support any nominee who had demonstrated hostility toward Roe, on Tuesday she said in a video clip on the PBS NewsHour that “I have not seen that with Judge Kavanaugh.” Also on Tuesday, she told a tightly packed scrum of reporters that Kavanaugh “is clearly qualified for the job” – though she still wants to consider his temperament and judicial philosophy. It’s hard to imagine her finding fault in either of those areas.

For her part, Murkowski said there were far more troubling candidates on Trump’s list of nominees. “There were some who have been on the list that I would have had a very, very difficult time supporting,” Murkowski told Politico Monday. “We’re not dealing with that.”

Ms. Bystrom, however, warns that if they back Kavanaugh, it could eventually backfire on them, even though neither is up for election this year. That goes for Senator Ernst as well. She may not be on the ballot in November, but Bystrom says other races in Iowa could be affected, including a toss-up seat for the House.

“I think we’re in an environment now where people, especially women of all ages, are afraid of rights that they’ve had for decades being taken away.” She says she’s around a lot of young women who have always had choices about their reproductive health. She sees them energized and concerned. They’re watching “The Handmaid’s Tale” – based on the novel about women subjugated to men – and wondering if that is going to be their world, she says.

And they have personal stories of their own. She recalls a young, conservative woman in tears because her friend did not qualify for an abortion under Iowa’s 20-week anti-abortion law, even though the fetus had a very serious defect.

It is such personal experiences that form opinions – those of women senators and the population at large.