Rand Paul

Rand Paul: 'We Do Need a Pro-Life Justice, and I've Always Been in Favor of That'

The Kentucky Republican was asked if Trump should nominate a justice who thinks "an unborn child with a beating heart is a person."

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Bill Clark/CQ Roll Call/Newscom

Sen. Rand Paul (R–Ky.) wants retiring Supreme Court Justice Anthony Kennedy's replacement to oppose abortion.

CNSNews.com asked Paul on Friday whether he wants President Donald Trump to nominate a judge who thinks "an unborn child with a beating heart is a 'person' entitled to equal protection of the law under the 14th Amendment." Fetuses generally develop beating hearts roughly three weeks after fertilization.

"I think we do need a pro-life justice, and I've always been in favor of that," Paul responded.

Though Kennedy was nominated to the Supreme Court by President Ronald Reagan, a conservative, he was considered a swing vote. In the landmark case Planned Parenthood v. Casey (1992), he joined the plurality opinion upholding Roe v. Wade (1973), the case that legalized abortion at the federal level.

With Kennedy gone, many people are predicting that Roe v. Wade could be overturned. Trump said while running for president that he would nominate "pro-life" justices to the Court, but it's not exactly clear how pro-life they have to be.

In an interview with Fox News host Maria Bartiromo on Sunday Morning Futures, Trump said his nominee to replace Kennedy will be "conservative," but he said he "probably" won't ask his pick whether he or she supports overturning Roe v. Wade. Overturning that 1973 ruling would not make abortion illegal, but it would allow individual states to ban the procedure.

It's not entirely clear how current conservatives on the Court would vote on the issue of overturning Roe v. Wade. Chief Justice John Roberts, for example, wrote a brief as a Department of Justice employee in 1990 that supported overturning the ruling. But during his 2006 confirmation hearing before the Senate, he said the ruling was "settled as a precedent of the Court."

Similarly, Justice Neil Gorsuch, who Trump nominated to the Court last year, is widely seen as a pro-life conservative. But during his Senate confirmation hearing, he said he accepts Roe v. Wade as "the law of the land."

So whether or not Trump appoints another pro-life justice to the Court, Roe v. Wade might remain in place. Even Leonard Leo of the conservative Federalist Society, who is advising Trump on his Court pick, has noted the importance of precedent. "I don't think at the end of the day it's about Roe v. Wade," Leo said on Fox News Sunday. "It's about having judges on the Court who are going to interpret the Constitution the way it's written, and part of interpreting the Constitution is taking into account major precedents."

Trump has said he will announce his Supreme Court nominee on July 9.