Justice Anthony Kennedy’s retirement after 30 years as a moderate swing vote on the Supreme Court poses a real threat to abortion rights in the United States, advocates and constitutional scholars agree. But exactly how that threat will play out is uncertain.
Within moments of the announcement that Kennedy, 81, would be leaving the court at the end of July, responses began to pour in from those who have spent careers fighting for and against abortion.
“Because President Trump will nominate the next Supreme Court justice, a woman’s constitutional right to access legal abortion is in dire, immediate danger,” said Ilyse Hogue, president of NARAL Pro-Choice America.
“The significance of today’s news cannot be overstated,” said Dawn Laguens, executive vice president of Planned Parenthood Federation of America. “The right to access abortion in this country is on the line.”
On the opposite side of the issue, the website LifeNews, a newsletter for the anti-abortion movement wrote: Kennedy’s “retirement will set into motion a massive battle to replace him with a justice who would uphold the rule of law and potentially pave the way for reversing the most horrific Supreme Court decision in history” — a reference to Roe v. Wade, the 1973 case that overturned state laws banning abortion.
Carl Tobias, a professor of constitutional law at the University of Richmond, agrees that “there may indeed be a real threat” to Roe. “This president has promised to appoint anti-choice judges, and given the present constitution of the court, one more anti-choice vote is possibly all that would be needed.”
Overturning Roe would return the issue to the states, so abortion would still be legal in some states, while others would be expected to outlaw it. Legal analyst Jeffrey Toobin tweeted that “Abortion will be illegal in twenty states in 18 months.”
That assumes that Trump could get an anti-abortion hard-liner through the Senate confirmation process. A vote along party lines at this moment would be 50 to 49, and at least two Republican senators — Lisa Murkowski of Alaska and Susan Collins of Maine — support abortion rights, as noted in a tweet by Ronald Klain, a Democratic operative and former chief of staff to Vice President Joe Biden, who also wrote, “Anyone who tells you that Roe v. Wade is ‘not really at risk’ doesn’t know what they are talking about” and “Anyone who votes for Trump’s nominee is voting to overturn Roe. Period.”
Also unclear is whether Chief Justice John Roberts — who tends to honor precedent and has shown a reluctance to reverse standing decisions — would vote to overturn Roe. Roberts did vote with the majority Tuesday in overturning a 40-year-old Supreme Court decision, ruling in Janus v. AFSCME that nonunion workers cannot be forced to pay fees to public sector unions. Roe, however, is singular in its significance. “They have overruled precedent before,” Tobias says, “but Roberts in particular would be concerned with the decision of that magnitude.”
Perhaps more likely, he says, is that the next collection of justices rather than “decide to take Roe head on, will just prefer to gradually erode it.” That has been happening already but would presumably speed up under a more conservative court. “Politically it might be more astute to just continue to undermine it with restrictions rather than overturn it and face the uproar.”
Any reversal will take a while. A state legislature needs to pass a law that directly collides with the existing interpretation of Roe. Such laws have already been introduced in a number of states, notably Ohio, and a challenge has to be heard in the lower federal courts and appealed up the chain. The justices have to agree to hear the case and rule the law constitutional.
The debate triggered by what a Texas Right to Life statement described as “an historic opportunity” will likely increase at a rapid pace.
“The most important commitment that President Trump has made to the pro-life movement has been his promise to nominate only pro-life judges to the Supreme Court,” the anti-abortion group Susan B. Anthony List said in a statement. “Justice Kennedy’s retirement from the Supreme Court marks a pivotal moment for the fight to ensure every unborn child is welcomed and protected under the law.”
“The stakes have never been higher,” said Fatima Goss Graves, president and CEO of the National Women’s Law Center. “It’s time to fight hard for the future of our democracy.”
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