Once every four years comes a day when there is only one serious topic in public discourse, and failing to address it head on is just evasion. Welcome to Election Day 2020. And since I’ve never been one to whistle past the pachyderm in the drawing room, I offer an analysis of the possible election result scenarios as I see them and their implications for the fight for the human right to life. These scenarios are likely to have a shelf life of just twenty-four hours. By this time tomorrow, three out of four of these scenarios will have proven me a liar, and maybe all four. If the Year of Our Lord 2020 has proven to be anything, it’s an exercise in Chaos Theory. But since, as we all know, “elections have consequences,” and it’s impossible to restrain the human will to prognosticate, here goes.
Although it’s tempting to view any presidential election as a simply binary outcome for purposes of policy, it’s more complicated than that, especially in an election such as this one in which control of the legislative branch is also up for grabs. Certainly the top-level outcome will drive all others, but the effectiveness of either a Trump administration or a Biden administration will largely be determined by the outcome of the Senate races that will be decided today.
In Congress, we begin with the presumption shared by all that the House will remain in Democrat’s hands. Whether or not that party’s majority will increase is irrelevant for our purposes. The Senate currently stands at a 53-47 Republican majority, a small margin but one that’s been sufficient to ensure success for the GOP’s two-fold strategy: confirm strongly conservative federal judges and act as a stopgap to the House’s agenda, including its determination to make abortion access a central feature of federal policy. If the President wins re-election, and Republicans retain control of the Senate, Trump is expected to continue expressing pro-life policy largely through executive actions such as the Protect Life Rule and the Protecting Life in Global Health Policy. Absent an act of God, a Supreme Court nomination is improbable in the next four years, but Trump’s overhaul of the federal judiciary, his signature impact on national policy, would continue. He’s already appointed 220 federal judges (including three members of the U.S. Supreme Court), far more than any president in the last sixty years.
But the 35 Senate seats at play today would favor a Democrat gain even without a tough presidential re-election race at the top of the ticket. If the Senate races break only moderately for the Democrat party, control of that chamber would change hands. If Trump wins but the Senate flips, expect a great deal of wrangling over budgetary riders like the Hyde Amendment, which prohibits Medicaid funding for elective abortions, and fights over budgetary and statutory conscience protections for pro-life healthcare professionals in federal programs such as the Church amendments and the Weldon Amendment. We may even see the return of lengthy “government shutdowns” over abortion funding and conscience protections – a possible teaching moment for the whole country.
A scenario in which Joe Biden wins the presidency, but the Senate stays in Republican hands and Congress is thus divided, is hardest to handicap. Biden’s judicial picks would be closely vetted by Mitch McConnell & Co., and he would have to moderate their jurisprudential views or face being stymied in filling judicial seats. President Trump’s pro-life executive orders and agency policy would go by the boards very quickly after the inauguration, but if the Senate remains resolute in protecting pro-life policy in the federal budget and statutes, the Hyde Amendment and other life-saving protections are likely to survive.
Obviously, the pro-life movement would have to put its hand to the plow if Tuesday’s results put Biden in the White House and Chuck Schumer at the helm of the Senate. Much has been made of the threat by some on the Left to “pack the Supreme Court” if Democrats sweep the White House and Congress, but bipartisan opposition to that idea, coupled with the fact that it would require the Senate to invoke the “nuclear option” and eliminate the 60-vote cloture requirement for all legislation, make it as unlikely to come to pass as it was in Franklin Roosevelt’s day. But the Hyde Amendment and every other pro-life budgetary rider and statutory protection would be on the chopping block. If this plays out, it will be important to remind ourselves that the 60% drop in abortion demand the U.S. has seen since 1992 – representing millions of lives saved – has come about as the combined result of strong state legislation protecting women and babies and rapidly falling demand for abortion. Whatever happens today, those factors augur for an increasingly healthy “Culture of Life” for the foreseeable future.