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What a Republican fight over Brett Kavanaugh’s replacement says about the abortion debate today

Neomi Rao oversaw anti-abortion policies for the Trump administration. But one Republican senator wasn’t sure she was anti-abortion enough.

Neomi Rao testifies during a confirmation hearing on Capitol Hill on February 5, 2019
Neomi Rao testifies during a confirmation hearing on Capitol Hill on February 5, 2019.
Zach Gibson/Getty Images

When President Trump nominated Neomi Rao, a White House official, to fill the DC Circuit Court seat left vacant when Justice Brett Kavanaugh joined the Supreme Court, progressive groups protested.

Anti-sexual assault advocates, in particular, took issue with an op-ed Rao wrote as a Yale undergraduate, in which she argued that in cases of assault, if a woman “drinks to the point where she can no longer choose, well, getting to that point was part of her choice.”

But then opposition to Rao came from a surprising source: conservatives. On Sunday, Sen. Josh Hawley (R-MO) told Axios he was concerned that if confirmed, Rao would not do enough to oppose abortion. “I am only going to support nominees who have a strong record on life,” he said.

After a meeting with Rao on Wednesday, Hawley announced he would support her, and on Thursday he and all other Republicans on the Senate Judiciary Committee voted to advance her nomination to the full Senate. But the episode showed how fraught abortion politics have become, even within the Republican Party.

Rao’s record has been sufficient for reproductive rights groups to oppose her. As the administrator of the Office of Information and Regulatory Affairs, she oversaw a Trump administration rule creating broad exceptions to the Obama-era contraceptive coverage mandate, as well as the proposed rule to bar providers that perform abortions from receiving federal family planning funds. According to a fact sheet from NARAL Pro-Choice America, her career with the administration “has been devastating to folks across the country who provide and need access to reproductive healthcare.”

But Hawley was concerned that some of Rao’s previous writings suggest support for a legal doctrine called substantive due process, which was used in Roe v. Wade to help identify a constitutional right to abortion. And some conservative commentators rallied behind Hawley — “pro-lifers have been burned so often by Republican judicial nominees that many of them are always, and justifiably, on high alert,” wrote Ramesh Ponnuru at National Review.

Rao’s record matters to conservatives because the DC Circuit is often a springboard for the Supreme Court, as it was for Kavanaugh. Focus on abortion has intensified since Kavanaugh’s confirmation, with more than a dozen cases that could pose a challenge to Roe v. Wade now one step away from the Supreme Court. Meanwhile, many Republicans are stepping up their anti-abortion efforts in the runup to the 2020 elections. These extraordinary tensions in the always-tense abortion debate may help explain why a Trump official who helped craft anti-abortion policy found her confirmation jeopardized by critics who worried she wasn’t anti-abortion enough.

Sen. Josh Hawley was worried Rao might support a legal doctrine involved in Roe v. Wade

Trump announced Rao’s nomination last November, saying, “she’s going to be fantastic — great person.” In January, BuzzFeed’s Zoe Tillman reported on her writings as an undergraduate, including an op-ed for the Yale Herald in which she argued that women who are raped while drunk bear some responsibility for the crime. “Implying that a drunk woman has no control of her actions, but that a drunk man does strips women of all moral responsibility,” Rao wrote. Rao has not responded to Vox’s request for comment for this story.

Much of Rao’s confirmation hearing before the Senate Judiciary Committee earlier this month focused on the issue of sexual assault, with Sens. Kamala Harris (D-CA) and Joni Ernst (R-IA) expressing concerns. In the hearing, Rao said that she believes “no one should blame the victim,” but that “I tried to make the commonsense observation that women can take certain steps to make sure they’re not a victim.”

Concerns from the right about Rao’s stance on abortion came to the fore more recently. On Sunday, Hawley told Axios he was concerned that Rao might support substantive due process, the idea that the 14th Amendment’s guarantee of due process gives Americans certain rights not explicitly spelled out in the Constitution.

Hawley, who unseated Democratic Sen. Claire McCaskill in 2018, was endorsed by National Right to Life and has backed a 20-week federal abortion ban, also pushed by Trump in his State of the Union speech. During his campaign, he emphasized his role in fighting the Obama administration in Burwell v. Hobby Lobby, in which the Supreme Court held that “closely held corporations” did not have to provide their employees with health insurance covering contraception.

The idea Hawley mentioned to Axios — substantive due process — has been used by courts to identify implied rights like the right to marry or to parent children, Mary Ziegler, a law professor at Florida State University, told Vox. Substantive due process was also part of the Court’s reasoning in identifying a right to an abortion in Roe v. Wade and reaffirming it in Planned Parenthood v. Casey, Ziegler said.

That was the root of Hawley’s concern. In response to Vox’s request for comment, the senator’s office pointed to a letter he sent to Rao on Tuesday.

“As a member of the Senate Committee on the Judiciary, it is my responsibility to scrutinize every appellate court nominee’s approach to constitutional interpretation. That includes asking nominees about their understanding of the Fourteenth Amendment and substantive due process—the atextual doctrine that Supreme Court justices have invoked to strike down, among other things, state laws limiting abortion,” Hawley wrote in the letter. “I will not vote to confirm nominees whom I believe will expand substantive due process precedents like Roe v. Wade and Casey v. Planned Parenthood of Southeast Pennsylvania.”

Hawley pointed to two articles by Rao as the bases for his concern. In one, Rao writes that “extra-legal sources can help judges to determine when a departure from past practice might be necessary.”

In the other, she says that the “Casey plurality treated a woman’s right to choose an abortion as part of her constitutionally protected liberty, because her choice implicated both dignity and autonomy.”

Also in that article, Rao writes that “American constitutional law has a long history of treating individual choice and autonomy as an integral and preeminent component of human worth.”

“I have concerns about your views on whether the Constitution confers substantive constitutional rights to dignity and whether those rights trump democratically passed laws,” Hawley wrote.

The senator also wrote an op-ed in the Federalist on Wednesday, in which he argued that “we need judges who will protect states’ ability to look out for the unborn to the maximum extent possible under current Supreme Court precedents.”

Rao met with Hawley on Wednesday to discuss his concerns. During the meeting, Hawley said in a statement to media on Thursday, Rao said that “she would interpret the Constitution according to its text, structure and history, not according to changing social and political understandings” and that “substantive due process finds no textual support in the Constitution.”

On the basis of their conversation, Hawley announced that he would vote in favor of Rao. On Thursday, he and 11 other Republicans on the Senate Judiciary Committee voted to advance Rao’s nomination, with all 10 Democrats on the committee voting against advancing her. The full Senate is likely to confirm Rao.

Abortion rights groups have opposed Rao — but that wasn’t enough for some conservatives

Hawley’s objections to Rao garnered criticism from some conservatives. Carrie Severino, chief counsel of the Judicial Crisis Network, which backs Republican judicial appointees, said in a statement that Hawley was “spreading the very same kind of rumors and innuendo and character assassination that Republican leaders fought during Justice Kavanaugh’s confirmation.” Meanwhile, the editorial board of the Wall Street Journal decried Hawley’s “bad judgment” and accused him of joining “the left in trashing Neomi Rao.”

At 39, Hawley is the youngest senator in the country, and some have accused him of trying to make a name for himself with his opposition to Rao. “Hawley could be working to confirm her and other extraordinary nominees, but it seems he’d rather be making headlines,” Severino said in her statement.

Meanwhile, the left has been raising concerns about Rao for some time, citing her work on the Trump administration’s reproductive health policy, among other issues. According to NARAL, Rao oversaw several major policy changes in her role at the Office of Information and Regulatory Affairs, including a new rule, a final version of which was proposed last week, that would bar providers from receiving federal family planning money under Title X if they perform or refer patients for abortions. The rule would bar Planned Parenthood, which says it serves 41 percent of Title X patients, from receiving the funding, and reproductive health groups say it would leave many low-income patients around the country without access to contraception.

In a fact sheet, NARAL cites one of the same articles that sparked concern for Hawley — but for the reproductive rights group, the article is evidence that Rao may oppose abortion rights. In it, NARAL notes, Rao states that “substantive due process arguably has no textual support in the Fourteenth Amendment Due Process Clause.” In the same article, she calls Roe “perhaps the most disputed decision in recent history,” and criticizes the majority’s citation of Plato and Aristotle in its opinion: “The Court never explains why Plato and Aristotle should be considered authority for such a controversial moral and political issue, or how the support of philosophers provides a persuasive legal or institutional argument for the Court’s expansion of privacy rights.”

NARAL also notes that Rao has donated money to anti-abortion politicians, including Jeb Bush, Mitt Romney, and Ted Cruz.

Still, some on the right defended Hawley’s concerns. “Raising doubts about Rao’s reliability on some issues could well be unfair to her,” Ponnuru wrote at National Review. “She may have wholly sound views on substantive due process and view the Court’s abortion jurisprudence the same way as Justice Thomas, for whom she clerked. But fairness to her, while important, is less important than moving the courts in the right direction.”

Ponnuru also argued that an appointment to the DC Circuit Court could essentially be a glide path to the Supreme Court, and that if Rao were to be nominated to the high court, “Republicans would be under strong partisan pressure” to approve her. Rao has been mentioned as a possible replacement for Justice Ruth Bader Ginsburg should her seat become open, according to Politico.

For some, Hawley’s willingness to raise questions about a Trump nominee is a good sign regardless of his rationale. “The Republicans have been rubber stamping people through the committee since Trump was elected,” Carl Tobias, a professor at the University of Richmond School of Law, told Vox. “Even though I don’t necessarily agree on the particular issue,” he said, “I do think it’s legitimate to question people rigorously about their jurisprudential thinking.”

Meanwhile, Hawley’s opposition was important to Republicans because they couldn’t afford to lose many votes on Rao, as Jonathan Swan noted at Axios — especially since Sen. Ernst, who said in January that she is a survivor of sexual assault, had already raised concerns about Rao’s undergraduate writings. Ultimately, both voted in favor of Rao, but Ernst said she might not support Rao if she were up for a seat on another court in the future.

The Rao controversy comes at a fraught time for abortion politics

The controversy is a reminder of the heightened state of the abortion debate in 2019. With Kavanaugh and fellow Trump appointee Justice Neil Gorsuch on the Court, many abortion opponents see a chance to overturn Roe v. Wade. In anticipation of such a challenge — and buoyed by Democratic victories in the 2018 midterms — abortion rights groups are backing legislation around the country to roll back abortion restrictions and expand access.

Meanwhile, Trump and other Republicans appear to see abortion as a winning issue in the 2020 elections. On Tuesday, Senate Majority Leader Mitch McConnell scheduled a vote on a bill that would have instituted requirements for the care of babies born after failed abortions. The bill was all but sure to fail, but McConnell and other Republicans saw it as a chance to get Democrats on the record opposing it.

The debate over whether Rao was anti-abortion enough “speaks volumes” about the state of abortion politics today, Tobias said. “There’s no downside” for Hawley in taking a hard line on abortion, he explained. “It plays to his base in Missouri.”

Hawley is not up for reelection until 2024. Still, his comments about Rao come at a time when the issue of abortion is even more charged than usual. In an ordinary year, it might be strange to see a Republican senator block a Republican president’s nominee — who was instrumental in that president’s conservative reproductive health policies — on the grounds that she may be insufficiently opposed to abortion. But when it comes to the politics of abortion rights, 2019 might be an extraordinary year.

Correction: An earlier version of this story misstated the era when the idea of substantive due process originated. It was discussed by courts before the 1910s.