When President Trump appointed Neomi Rao, a White House official, to the Washington circuit court post, which became vacant when Judge Brett Kavanaugh joined the Supreme Court, progressive groups protested.
Advocates of sexual assault, in particular, challenged an op-ed Rao wrote as a Yale undergraduate studentin which she argued that in cases of assault, if a woman "drinks so much that she can no longer choose, well, getting to that point was part of her choice".
But now, the opposition to Rao comes from a surprising source: the conservatives. On Sunday, Senator Josh Hawley (R-MO) told Axios he feared that, if it was confirmed, Rao would not do enough to oppose the abortion. "I will only support the nominees who have a good record in life," he said.
Rao's record was enough for the rights groups to oppose it. As Director of the Office of Information and Regulatory Affairs, she oversaw a Trump rule of administration creating broad exceptions to the Obama era contraceptive coverage mandate, as well as proposed rule to prohibit providers who perform abortions from receiving federal family planning funds. according to a technical sheet of NARAL Pro-Choice Americahis career in the administration "has been devastating for people across the country who provide and need access to reproductive health care."
But Hawley is concerned that some of Rao's earlier writings suggest supporting a legal doctrine called due process, which was used in Roe v. Wade to help identify a constitutional right to abortion. And some conservative commentators rally behind Hawley – "Pro-life has been burned so often by Republican candidates for justice that many of them are still, and rightfully, in a state of alarm" , wrote Ramesh Ponnuru at the national journal.
The Rao record is important for the conservatives because the DC circuit is often a stepping stone for the Supreme Courtas for Kavanaugh. Abortion has intensified since Kavanaugh's confirmation, with more than a dozen potentially problematic cases Roe v. Wade now a step away from the Supreme Court. Meanwhile, many Republicans are step up their anti-abortion efforts in the run-up to the 2020 elections. These extraordinary tensions in the still tense debate over abortion may help explain why a Trump official who has contributed to the development of anti-abortion policy is now seeing its confirmation compromised by critics. who fear that she will not do it enough.
Senator Josh Hawley fears that Rao supports a legal doctrine implicated in Roe v. Wade
Asset announced the appointment of Rao last November, saying, "She's going to be fantastic – a great person." In January, Zoe Tillman from BuzzFeed reported her writing as an undergraduate student, including an editorial for the Yale Herald in which she argued that women who are raped while intoxicated bear part of the blame for the crime. "This implies that a drunk woman has no control over her actions, but that a drunken man takes away women from any moral responsibility," wrote Rao. Rao did not respond to Vox's request for comment for this story.
A large part of Rao confirmation hearing before the Senate Judiciary Committee earlier this month has focused on the issue of sexual assault, with Sens. Kamala Harris (D-CA) and Joni Ernst (R-IA) expressed their concerns. At the hearing, Rao stated that she was convinced that "no one should blame the victim," but that "I have tried to make a sensible point that women can take certain steps to ensure that they are not a victim.
The rightwing's concerns about Rao's stance on abortion appeared more recently. On Sunday, Hawley told Axios he was worried that Rao might support regular procedure of substance, the idea that the guarantee of the 14th Amendment's minutes gives Americans certain rights that are not explicitly stated in the Constitution.
Hawley, who toppled Democratic Senator Claire McCaskill in 2018, was approved by National Right to Life and supported a 20-week federal ban on abortion, also pushed by Trump in his speech on the state of the Union. During his campaign he stressed his role in the fight against the Obama administration Burwell c. Hobby Lobby, in which the Supreme Court declared that "private companies" were not obliged to provide their employees with health insurance covering contraception.
Mary Ziegler, a law professor at Florida State University, told Vox that Hawley had brought up the idea of Axios – a substantive fair procedure – developed by the courts. The Court also used the principle of fair trial to determine the right to an abortion Roe v. Wade and reaffirming it in Parenting Planning v. Casey, Said Ziegler.
This is the root of Hawley's concerns. In response to Vox's request for comment, the senator's office reported a letter he sent to Rao on Tuesday.
"As a member of the Senate Judiciary Committee, it is my responsibility to control the approach of each Constitution to constitutional interpretation. This involves asking candidates about their understanding of the 14th Amendment and due process – the fundamental doctrine that Supreme Court justices have invoked to overturn, among other things, the laws that limit abortion, "writes Hawley in his statement. letter. "I will not vote to confirm the candidates who, in my opinion, will broaden the due process precedents such as Roe v. Wade and Casey c. Planned family from southeastern Pennsylvania. "
Hawley points out that two Rao articles are the basis of his concern. InRao writes that "extra-legal sources can help judges determine when a departure from past practices may be necessary".
In L & # 39; othershe says that theCasey Plurality dealt with a woman's right to choose an abortion as part of her constitutionally protected freedom, as her choice involved both dignity and autonomy. "
Also in this article, Rao writes that "American constitutional law has long considered individual choice and autonomy as an integral and preeminent element of human value."
"I am concerned about your opinion on whether the Constitution confers fundamental constitutional rights to dignity and whether these rights go beyond democratically adopted laws," Hawley writes.
The senator also wrote an editorial in the federalist Wednesday, in which he affirmed that "we need judges who protect the ability of states to supervise as much as possible unborn children according to the current precedents of the Supreme Court".
He and Rao are scheduled to meet on Wednesday, according to his office.
Abortion rights groups have opposed Rao – but that may not be enough for some conservatives
Hawley's objections to Rao sparked criticism from some conservatives. Carrie Severino, Chief Counsel of the Judicial Crisis Network, who supports Republican-appointed judges, said in a statement that Hawley "was spreading the same type of rumors, assassinations and assassinations of character that Republican leaders had fought in the confirmation of Judge Kavanaugh". Wall Street Journal editorial board decried Hawley's "bad judgment" and accused him of joining "the left to sack Neomi Rao".
At 39, Hawley is the the youngest senator in the country, and some have accused of trying to make a name for himself with his opposition to Rao. "Hawley may be trying to confirm her and other extraordinary candidates, but he seems to prefer to make headlines," Severino said in his release.
The left has indeed expressed concerns about Rao for some time, citing his work on the reproductive health policy of the Trump administration, among others. According to NARAL, Rao oversaw several major policy changes in his role at the Office of Information and Regulatory Affairs, including a new rule, a final version of which was proposed last week, would prohibit claimants from receiving federal family planning money under Title X if they consult or refer patients for an abortion. The rule would prohibit Planned Parenthood, which serves 41% of Title X patients, and reproductive health groups, that would leave many low-income patients in the country without access to contraception.
In an information sheet, NARAL quotes one of the same items this has aroused Hawley's concern – but for the reproductive rights advocacy group, the article is proof that Rao can oppose the right to abortion. NARAL notes that, according to Rao, "the formal substantive procedure has no textual basis in the 14th Amendment's procedural law". In the same article, she calls roe "Perhaps the most controversial decision of recent history," and criticizes the opinion cited by the majority of Plato and Aristotle in his opinion: "The Court never explains why Plato and Aristotle should be considered as an authority for such a morally and politically controversial issue, or how philosophers provide a convincing legal or institutional argument for the expansion of the Court's right to privacy . "
NARAL also notes that Rao gave money to anti-abortion politicians, including Jeb Bush, Mitt Romney and Ted Cruz.
Nevertheless, some right-wing members have defended Hawley's concerns. "To cast doubt on Rao's reliability on some issues could be unfair to her," writes Ponnuru in National Review. "She may have a wholesome view of the proceedings and see the Court's case law on abortion in the same way as Judge Thomas, for whom she acted as secretary. But fairness to it, though important, is less than advancing the courts in the right direction. "
Ponnuru also argues that an appointment to the DC Circuit Court could essentially constitute a shift to the Supreme Court, and that if Rao were to be appointed to the High Court, "the Republicans would be subject to strong partisan pressure" to approve it. Rao was mentioned as a possible substitute for Judge Ruth Bader Ginsburg if her seat became open, according to Politico.
At the same time, Hawley's opposition is important because Republicans can not afford to lose a lot of votes on Rao. Jonathan Swan notes to Axios – especially since Senator Ernst, who said in January that she was a victim of sexual assault, has already expressed concerns about Rao's writings at the undergraduate level.
The controversy over Rao comes at a difficult time for abortion policy
The controversy reminds that the debate on abortion has intensified in 2019. With Judge Neil Gorsuch, one of the judges appointed by Trump, at court, many opponents of the abortion lawsuit have stepped up. abortion see an opportunity to reverse. Roe v. Wade. In anticipation of such a challenge – and carried by the democratic victories of mid-2018 – abortion rights groups support legislation across the country to lower restrictions on abortion and expand access.
Meanwhile, Trump and other Republicans seem to consider abortion as a winning issue in the 2020 elections. Senate Majority Leader Mitch McConnell scheduled a vote on a bill that would have instituted requirements for the care of babies born after a failed abortion. The bill was almost certain to fail, but McConnell and other Republicans saw it as a chance to convince Democrats to oppose it.
Hawley will not be re-elected until 2024. Nevertheless, his comments on Rao come at a time when the issue of abortion is even more hectic than usual. In an ordinary year, it might be strange to see a Republican senator blocking a Republican presidential candidate – who played a key role in his president's conservative reproductive health policies – on the grounds that he might not be sufficiently opposed to abortion. But with respect to the right to abortion policy, 2019 could be an extraordinary year.