The potential confirmation of Judge Ketanji Brown Jackson to the Supreme Court could slow down the pro-life movement, conservative advocates warn.
Though her record on abortion is slim, Judge Jackson did rule against the Trump administration’s move to defund some women’s reproductive groups in 2018 when she was on the U.S. District Court for the District of Columbia.
She also represented pro-choice organizations in a 2001 challenge to pro-life protests outside abortion clinics in Massachusetts.
“Joe Biden is fulfilling his promise to only appoint justices who support the Roe v. Wade regime of abortion on demand up to birth — a policy so extreme only a handful of countries in the world hold it, including North Korea and China,” said Marjorie Dannenfelser, president of the Susan B. Anthony List. “We have no doubt she will work with the most pro-abortion administration in history to enshrine abortion on demand nationwide in the law.”
Gayle Trotter, president of the American Women’s Alliance, said some legal scholars might say Judge Jackson’s position on abortion won’t matter because Democratic appointees are in the minority on the high court. She said such reasoning is shortsighted when weighed against the impact of a justice’s lifetime appointment.
“We know how that can flip,” she said. “Minority now, but majority whenever it comes around again.”
As a judge, the nominee ruled against the Trump administration’s effort to cut funding to groups that provide contraceptive education and referrals to clinics for preventing teen pregnancy.
Judge Jackson said the move violated the Administrative Procedure Act because the administration took away funds already allocated to the groups without following procedures. The parties later dismissed the case on appeal.
In 2001, as a lawyer in private practice, the nominee filed a brief on behalf of abortion advocates in a challenge against a Massachusetts law that banned pro-life advocates from approaching an individual or car within 6 feet outside an abortion facility.
In the brief, the Harvard-educated lawyer described the pro-life protesters’ actions as “a form of conduct that has proven over time to be threatening and dangerous to women attempting to enter a clinic: ‘in-your-face’ confrontations.”
“There is simply no good reason to allow protestors to intimidate clinic clients in this fashion; there is no constitutionally-protected right to harass a woman entering a clinic or to invade her ‘personal space,’” she wrote in the brief.
President Biden’s first pick for the Supreme Court said her work on the 2001 case was about “free speech,” Ms. Trotter mocked.
“The problem is she was on the side against free speech,” Ms. Trotter said. “It is something that should be discussed during her confirmation hearing … if she has a particular animus against pro-life speakers — or does she feel they have less freedom under the First Amendment.”
Alison Centofante, a pro-life advocate and founder of Centofante Strategies LLC, said the judge’s record on the First Amendment is concerning.
“We are seeing a movement of young people ready to speak up for life,” she said, but the nominee could try to silence them.
Meanwhile, pro-choice groups have applauded Judge Jackson’s nomination.
Planned Parenthood President Alexis McGill Johnson said the judge’s confirmation is “essential” to “rebuild our courts and protect our health and rights.”
The Center for Reproductive Rights echoed those comments.
“It is critical that we have a justice who will defend equality and liberty for everyone, including in abortion cases, and who will consider the impact of each ruling on real people’s lives,” the group said in a press statement. “Every justice changes the Court, and every justice has the opportunity to build trust in the institution and influence her colleagues. Judge Jackson’s confirmation will have a real impact on our lives for the next generation.”
Elliot Mincberg, a senior fellow at People for the American Way, said Judge Jackson’s two cases related to abortion don’t detail her views. He said they involved only the Administrative Procedure Act and free speech rights.
“The record is thin, but it is interesting to me that groups on both sides of the issue believe they know what she will do,” he said. “I don’t think Joe Biden or I can predict precisely what she will do on an abortion case.”
Even if she rules alongside pro-choice advocates, he said, the court has a 6-3 conservative majority. That is troubling for pro-choice supporters as the high court weighs challenges to states’ increasingly strict abortion bans.
“Anticipating good results or good analysis by a Justice Jackson can only take us so far because the odds are good that interest in promoting abortion care rights will remain a minority on the court at least for now,” he said.
Judge Jackson is scheduled to appear before the Senate Judiciary Committee next week for confirmation hearings.
Sen. Richard J. Durbin, Illinois Democrat and chairman of the Senate Judiciary Committee, said senators plan to hold a confirmation vote before leaving for Easter recess, which begins April 8.
With a 50-50 Senate, though, Democrats can’t afford to lose a single vote for her confirmation.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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