Obstacles to Trump’s pro-life agenda

Russell Shaw

Many social conservatives were ecstatic at the election of Donald Trump. Whether they’ll still be ecstatic a few months down the line cannot be predicted — and by no means is this uncertainty entirely of Trump’s making.

During the campaign, Trump, who in the past had declared himself pro-choice, said he was now pro-life and would name pro-life Supreme Court justices. Underlining his commitment, he released the names of conservative jurists from among whom he said he’d make his picks.

After he’s sworn in, one of the first items on Trump’s agenda will be naming someone to fill the Supreme Court seat vacant since conservative Justice Antonin Scalia’s death in February. Senate Republicans refused even to hold hearings on President Obama’s pick — federal judge Merrick Garland, usually described as a moderate liberal — and Garland’s nomination became a dead letter with Trump’s election.

The obvious question now is whether Senate Democrats, stung by the handling of the Garland nomination, will permit Trump’s nominee to be confirmed or whether they will play tit for tat by blocking him or her. Lacking control of the Senate, Democrats can’t prevent hearings and a committee vote, but they have the muscle to keep the full Senate from confirming Trump’s pick.

However the impending struggle over confirmation turns out, it’s important to realize that, contrary to what’s often said, simply filling Justice Scalia’s seat with another conservative won’t produce a conservative Supreme Court majority on abortion and same-sex marriage.

Because on these issues Justice Anthony Kennedy, customarily described as a conservative, usually votes with the court’s four liberals (Ginsburg, Breyer, Sotomayor, Kagan), thus creating a five-member majority. Adding a social conservative to succeed Scalia will increase the social issues minority to four (Roberts, Thomas, Alito, and whoever), but that’s all. On these issues, Trump can’t shift the ideological makeup of the court unless and until he has a shot at naming a replacement for Kennedy or one of the liberals.

Hillary Clinton’s defeat means the Hyde Amendment barring federal funding of abortions — a provision whose repeal Clinton promised to seek — is safe, as is its foreign aid counterpart, the Helms Amendment.

Clinton’s loss saves social conservatives from serious damage to their causes while Trump’s victory opens up the possibility of important progress on several fronts — along with new obstacles. A lot depends on how hard and skillfully Trump presses to realize the hopes of people whose votes did much to make him president.

Russell Shaw is the author of “American Church: The Remarkable Rise, Meteoric Fall, and Uncertain Future of Catholicism in America.”