Within a few years, five men could revoke a woman’s right to have an abortion in the United States.
President Donald Trump’s nomination of Judge Brett Kavanaugh to the Supreme Court is a clear threat to Roe v. Wade, the court’s landmark 1973 decision that essentially legalized abortion throughout the country. If confirmed, Kavanaugh would likely provide the fifth vote to overturn Roe ― a ruling that his predecessor Justice Anthony Kennedy protected as the court’s swing vote on abortion.
While Kavanaugh, who served more than a decade on the D.C. Circuit Court of Appeals, has not directly weighed in on Roe, his opinions and support for conservative anti-abortion groups and politicians have tipped his hand. A Catholic, he weighed in on abortion rights in 2017, when he wrote in dissent that a pregnant undocumented teenager should have to wait at least 10 more days ― which would have pushed her into her second trimester ― to have an abortion while in federal custody in Texas near the U.S.-Mexico border.
He argued that the judges in the majority created a right for undocumented immigrant minors in U.S. custody “to obtain immediate abortion on demand” ― coded language that’s only ever employed by anti-abortion activists.
Kavanaugh emphasized the government’s “permissible interests” in “favoring fetal life” and “refraining from facilitating abortion” ― language that certainly signifies a hostility to reproductive rights.
He also dissented with the majority in Priests for Life v. U.S. Department of Health and Human Services, arguing that the Obama administration imposed a “substantial burden” on the rights of religious groups by requiring them to include birth control coverage in their health insurance plans.
“Kavanaugh emphasized the government’s ‘permissible interests’ in ‘favoring fetal life’ and ‘refraining from facilitating abortion.’”
Reproductive rights groups sounded the alarm on his nomination Monday night. “We can’t forget what America was like before Roe, and we know the reality today for so many women in so many states across the nation where our right to make the most fundamental decisions about our bodies, our families, and our lives has been all but eradicated,” Ilyse Hogue, the president of the abortion-rights advocacy group NARAL, said in a statement. “Kavanaugh would use the Court as a tool to doom all women to that fate.”
The high court is likely to take on an abortion rights case again soon. Conservative state legislatures have enacted hundreds of abortion restrictions since 2011, including 63 in 2017 and 21 so far this year. Iowa, for instance, just banned abortion at six weeks ― before some women even realize they’re pregnant. The law was designed by conservatives to challenge Roe.
The Supreme Court could also consider a Planned Parenthood defunding case from Kansas and Louisiana as early as next term.
“I’m looking at the list of cases that could potentially be taken up in the 2018 and 2019 terms, and any one of them would strike a blow to the heart of Roe if it was decided poorly and set women’s rights back by decades and decades,” Hogue told HuffPost.
If Roe is overturned, states will be allowed to regulate or ban abortion as they see fit. The Center for Reproductive Rights estimates that 22 states could ban abortion outright. Nine states are certain; Louisiana, Mississippi, North Dakota and South Dakota already have trigger bans on the books, meaning that they will automatically criminalize abortion as soon as the Supreme Court allows it. And Arkansas, Kansas, Kentucky, Missouri and Ohio have enacted laws that indicate their intent to limit abortion to the fullest extent possible should Roe be overturned.
It’s ironic that Trump might be the president to reverse one of the most important women’s rights decisions in a century. Trump once called himself “very pro choice,” swinging to the other side on the issue only during the 2016 campaign because it benefited him politically to do so. He has a long history of denigrating women, has been accused by over a dozen women of sexual harassment and assault and is currently embroiled in a legal battle with an adult film actress with whom he allegedly had an extramarital affair.
Trump is upholding a campaign promise to evangelicals by nominating a justice who would overturn Roe ― and the ripple effects could extend far beyond abortion rights.
“Roe is the foundation for a broad swath of constitutional law that protects our right to make decisions about marriage, procreation, contraception, family relationships, child rearing and education and more,” said Nancy Northup, the president of the Center for Reproductive Rights. “Roe is about what the Supreme Court in Planned Parenthood v. Casey explained is ‘a promise of the Constitution that there is a realm of personal liberty which the government may not enter.’”
The last hope for the left is that a few moderate Republican senators, like Susan Collins of Maine, decide to help Democrats block Kavanaugh’s confirmation. She and Sen. Lisa Murkowski (R-Alaska), both of whom declined their invitations to the White House on Monday night to hear Trump announce his Supreme Court nominee, are consistent supporters of abortion rights. They will feel pressure from both sides of the aisle as they decide whether to confirm Trump’s nominee.
A clear majority of Americans, according to nearly every poll on the subject in the last decade, do not want to see Roe overturned. The Democratic National Committee is urging voters to make their voices heard immediately.
“We blocked health care repeal last year because Americans came together, spoke out, and held Republican senators accountable,” the DNC said in a statement. “The only way to stop this nomination now is to fight again. Call your senator and vote in November. Democrats must make our voices heard at the ballot box for the millions of American families who are counting on us.”