Ruth Bader Ginsburg's Death, Abortion And The 2020 Election : Consider This from NPR This week Justice Ruth Bader Ginsburg will lie in state at the U.S. Capitol. She'll be the first woman in history to do so.

Ginsburg's death sparked record political donations from Democrats, explains Jessica Taylor of Cook Political Report. Those donations may help Democrats in an uphill battle to retake the Senate.

Meanwhile, Senate Republicans appear to have the numbers to fill Ginsburg's seat with a conservative nominee, which would shift the balance of power on the court. Professor Mary Ziegler of Florida State University explains why that could change the outcome of several cases concerning abortion restrictions that could land before the Supreme Court.

In participating regions, you'll also hear a local news segment that will help you make sense of what's going on in your community.

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What The SCOTUS Vacancy Means for Abortion — And The 2020 Election

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What The SCOTUS Vacancy Means for Abortion — And The 2020 Election

What The SCOTUS Vacancy Means for Abortion — And The 2020 Election

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AUDIE CORNISH, HOST:

To lie in state after a lifetime of serving your country is a great honor. And this week, Ruth Bader Ginsburg will be the first woman to receive that honor. She was the second female justice ever to serve on the Supreme Court. And for years, she served alongside the first, Sandra Day O'Connor.

(SOUNDBITE OF ARCHIVED RECORDING)

RUTH BADER GINSBURG: During the years that Sandra and I served together, invariably, one lawyer or another would respond to my question, Justice O'Connor. And occasionally, Sandra would say, I'm Justice O'Connor. She's Justice Ginsburg. Doesn't happen now with the three of us.

(LAUGHTER)

CORNISH: By 2015, when she gave this talk at Georgetown Law, Ginsburg had two new female colleagues, the court's third and fourth-ever female justices, Elena Kagan and Sonia Sotomayor.

(SOUNDBITE OF ARCHIVED RECORDING)

GINSBURG: People ask me sometimes - when do you think it will be enough? When will there be enough women on the court? And my answer is when there are nine.

(LAUGHTER, APPLAUSE)

GINSBURG: 'Cause some people are taken aback until they remember that for most of our country's history, there were only men.

CORNISH: CONSIDER THIS. Ginsburg's death could lead to massive shifts for the country when it comes to access to abortion and the 2020 election. From NPR, I'm Audie Cornish. It's Wednesday, September 23.

It's CONSIDER THIS FROM NPR. One night after the Supreme Court announced the death of Ruth Bader Ginsburg, this was the sound at a rally held by President Trump in Fayetteville, N.C.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PEOPLE: (Chanting) Fill that seat. Fill that seat. Fill that seat.

CORNISH: Chants of fill that seat from the crowd and a promise from the president.

(SOUNDBITE OF ARCHIVED RECORDING)

PRESIDENT DONALD TRUMP: I will be putting forth a nominee next week. It will be a woman.

(CHEERING)

CORNISH: Trump has since said he'll name that nominee this Saturday. Once that happens, there's a background check. And then the Senate holds public hearings vetting the nominee and ultimately votes to confirm the nominee, which is how this process typically goes. But that's not what happened four years ago.

(SOUNDBITE OF ARCHIVED RECORDING)

MITCH MCCONNELL: It is a president's constitutional right to nominate a Supreme Court justice, and it is the Senate's constitutional right to act as a check on a president and withhold its consent.

CORNISH: In 2016, Mitch McConnell led a Republican-controlled Senate in refusing to hold a vote on the nomination of Merrick Garland to the Supreme Court. Garland was nominated by President Obama. That was in March of 2016.

(SOUNDBITE OF ARCHIVED RECORDING)

MCCONNELL: Action on a Supreme Court nomination must be put off until after the election campaign is over.

CORNISH: This time around, Republicans say things are different because they hold power in the Senate and the White House, too.

(SOUNDBITE OF TV SHOW, "FOX AND FRIENDS")

TRUMP: When you have the Senate, when you have the votes, you can sort of do what you want as long as you have it. So now we have the presidency, and we have the Senate.

CORNISH: President Trump told "Fox & Friends" this week, Republicans now have the power to do what they want.

(SOUNDBITE OF TV SHOW, "FOX AND FRIENDS")

TRUMP: You know, we won the election, and elections have consequences. It's called you pick people from the Supreme Court, and you pick judges, too.

CORNISH: And the president isn't wrong. Earlier this week, Republican Senator Mitt Romney was seen as a key vote on the issue of whether the Senate would take up a nominee.

(SOUNDBITE OF ARCHIVED RECORDING)

MITT ROMNEY: My liberal friends have, over many decades, gotten very used to the idea of having a liberal court, and that's not written in the stars.

CORNISH: He decided on Tuesday he was on board.

(SOUNDBITE OF ARCHIVED RECORDING)

ROMNEY: But it's also appropriate for a nation which is, if you will, center-right to have a court which reflects center-right points of view.

CORNISH: Once Romney made his decision, the math seemed to be there for Republicans. Only two senators remained on the record saying they oppose holding a vote on a justice this year - Susan Collins of Maine and Lisa Murkowski of Alaska, two Republican women who are both pro-choice.

(SOUNDBITE OF MUSIC)

CORNISH: So let's talk about abortion. A Republican-confirmed replacement for Ginsburg would shift the balance of power on the court, and that could mean a shift in how the court rules on cases involving abortion restrictions. Right now, there are more than a dozen of those cases making their way through federal courts. So we asked Mary Ziegler what she's watching. Ziegler is a professor at Florida State University College of Law and wrote a book called "Abortion And The Law In America: Roe V. Wade To The Present."

(SOUNDBITE OF ARCHIVED NPR BROADCAST)

MARY ZIEGLER: Well, there are two right now that are actually relatively close to the court. The court has a petition from Mississippi asking the court to hear whether that state can ban abortion at the 15-week mark. The court also has a chance to hear a case about medication abortion during the COVID-19 pandemic. Abortion rights activists had sued, essentially saying that requiring patients to see a doctor to get abortion medication during the pandemic was an undue burden. And a district judge agreed. The Trump administration is asking the court to reverse that ruling. Those could be taken by the court any day now.

CORNISH: Over the last few years, we've seen that Chief Justice John Roberts has been a key swing vote of sorts. For instance, he was the deciding vote in June in a case that struck down abortion restrictions in Louisiana. Any reason to expect he might continue in that role?

ZIEGLER: Well, presumably, if the court adds another conservative member, as now seems increasingly likely, even if John Roberts were to join his more liberal colleagues again, which is far from inevitable, it wouldn't be enough. And even the possible recognition, eventually, of a right to life - which would mean a nationwide ban on abortions, not just in red states - I think those outcomes become more conceivable the more conservative the court becomes.

CORNISH: And the big question is about Roe v. Wade. What does it mean when people say it is in trouble, legally?

ZIEGLER: Well, I think of the court's current members, as we saw in June, there's a significant number that already seem to have doubts about, for example, whether abortion harms women or whether Roe has distorted our constitutional jurisprudence. And so all of those signs point to danger. So both from the standpoint of signals on the court and signals in American politics, we have every reason to believe that Roe is in jeopardy.

(SOUNDBITE OF MUSIC)

CORNISH: Mary Ziegler, professor at Florida State University College of Law.

Outside the Supreme Court in Washington on Wednesday, mourners gathered to remember Justice Ginsburg. One of them was Lara Gamboni (ph), who drove to D.C. from northern Illinois.

(SOUNDBITE OF ARCHIVED NPR BROADCAST)

LARA GAMBINI: Yeah, I'm here for my mom and her generation (crying). I mean, they had to go through so much. And Ruth helped pave the way for them to have homes and credit and their own lives - independent lives - which they've given to us, their daughters and their granddaughters. So anyway, that's why I'm here.

CORNISH: NPR's Danielle Kurtzleben spoke to Gamboni there.

We know that Ginsburg's voice on the high court was important to many Democrats because her death has them donating money in record numbers.

JESSICA TAYLOR: Friday night, right after the news broke of Ginsburg's death, you could just see the ticker going up and up and all weekend. And by Monday, it had reached over $160 million.

CORNISH: That's Jessica Taylor, editor for The Cook Political Report. It's an independent newsletter that analyzes down-ballot races. By Monday of this week, she says, Democratic contributors had given more than $160 million online through ActBlue. That's the leading site for processing digital donations. A lot of that money will go towards efforts by Democrats to retake the Senate. I asked Jessica Taylor how that could shake out.

TAYLOR: Republicans that have been very energized by Supreme Court vacancies - we saw that in 2016. But now we see Democrats very engaged and really wanting to have their voice heard and sort of do something right after her death. And so they were sort of putting their money where their mouth is.

CORNISH: What does this tell us about the priority - the priorities for these voters? I mean, is this about the Supreme Court? Is this about the Affordable Care Act? Do we know kind of what's animating people?

TAYLOR: I think it's all boiled into one. Health care is one of the top motivating issues that we have seen driving especially independent voters. And given that the Supreme Court is going to hear the case on the Affordable Care Act - something that could really threaten preexisting conditions, especially - that I think is just sort of adding fuel to the fire now that you have a court that is down one reliably liberal vote and that could be, by that point, replaced by a conservative vote. So I think it's the Affordable Care Act. It's abortion and contraception that is really motivating these voters to give a lot of money.

CORNISH: Right. I guess that's the next question. Money - does it always equal more votes?

TAYLOR: It doesn't. But in these close races where we already see them as competitive, I think that it could certainly have an impact. Now, one candidate that I'm sure got a lot of money - she's already raising a ton of money online - was Amy McGrath in Kentucky, who's running against Mitch McConnell. She's been the top fundraiser for Democrats throughout this cycle, but that has not moved her poll numbers at all. She still trails by double digits. And I think really giving to her at this point is probably futile because she has plenty of money and has not been able to close the gap there, which I think was always going to be hard in a state that President Trump won by 30 points.

CORNISH: Now, I understand Democrats would need three seats. They need to win three additional seats - right? - to take control if there is a Democratic president and four if there is a Republican president, if Donald Trump remains in office. Can you tell us one or two races to watch that you're either seeing some movement or could give us a sense of which direction things are going?

TAYLOR: Democrats are going to lose one senator - Doug Jones in Alabama. He is the heavy underdog in that race. So they really need to flip four. I think the race that this could impact the most, though, is Colorado. Cory Gardner, Republican incumbent - he has decided to go along with Republican leadership. And that, I think, is very much at odds with where we see Colorado moving. That has been moving heavily Democratic in the past few election cycles. So today, actually, we moved his race from toss-up to lean Democrat. So we now see him as the underdog in that race.

CORNISH: You know, it feels crass to talk about money in the aftermath of somebody's passing. But has there been any other event in this election season that has spurred this kind of - this level of donations?

TAYLOR: We have seen all along that Democratic, especially small-dollar donations, have been far more prevalent and leading than Republicans. Almost every Republican incumbent has been outraised by their Democratic challenger. But this type of inflection point we have not seen in this sort of short amount of time. Certainly, I think Ginsburg's death and this seat now being open - which is, of course, what many liberals have feared for some time as her health was failing - has motivated them to give money that really could make an impact in some of these close races, I think, because some of these states could be decided by just mere thousands of votes.

CORNISH: Jessica Taylor, editor with The Cook Political Report.

It's CONSIDER THIS FROM NPR. I'm Audie Cornish.

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