One year ago today, I was among those dancing and singing to Beyoncé in the hot sun, celebrating in front of the steps of the Supreme Court that abortion rights had once again been vindicated. Last June, in a 5-3 decision, the Supreme Court held in Whole Woman’s Health v. Hellerstedt that it was unconstitutional for states to enact “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.” The Texas law in question had shut down half the abortion clinics in the state, and further threatened to close half of those that remained. But Stephanie Toti, a young lawyer at the Center for Reproductive Rights, convinced five of the eight justices that such closures were an unconstitutional “undue burden” on those seeking abortion care.
At that moment, it appeared the tide had turned and momentum was behind the pro-choice movement. But this was before Senator Mitch McConnell had successfully blocked President Obama’s Supreme Court nominee, Judge Merrick Garland, from ever having a hearing, and this was before Donald Trump was elected President of the United States. At the end of another Supreme Court Term, we now find ourselves with liberty and equal dignity under threat with Trump’s appointment of Neil Gorsuch to our nation’s highest bench and rumors swirling that Justice Anthony Kennedy—the Court’s perennial abortion swing vote—will retire, potentially solidifying an anti-choice 5-4 voting bloc.
While Judge Gorsuch never directly confronted abortion rights during his tenure on the U.S. Court of Appeals for the Tenth Circuit, his actions both on that court and during his confirmation hearing cast serious doubt on his respect for precedent concerning bodily autonomy. As a judge on the Tenth Circuit, he issued a troubling ruling allowing employers to opt out of providing contraceptive coverage to their employees based on the religious convictions of the business owners. In another ruling, he would have upheld the authority of states to “defund” Planned Parenthood. During his Senate confirmation hearing, Gorsuch did little to dispel the fears that he had been nominated by Trump because he satisfied the President’s anti-Roe litmus test and that, if confirmed, he would be a vote on the Court to undermine the constitutional rights of people seeking abortion. He was “very selective” in his responses to questions about some of the most important Supreme Court rulings protecting fundamental rights, including abortion, expressing his full support for certain rulings but purposefully evading questions on whether he agreed with other Supreme Court precedent or thought they vindicated the text and history of the Amendments they enforced.
Justice Gorsuch’s rulings and evasive statements at his confirmation hearing have put the spotlight back on Justice Kennedy, who will be 81 years young next month. Upon Gorsuch’s confirmation, the Kennedy retirement rumors began to run wild. The importance of Justice Kennedy on the bench cannot be overstated when it comes to preserving jurisprudence protecting the dignity and rights of those seeking an abortion. In a hyper-politicized climate, his ability to maintain the center of the Court is sorely needed and could not be replicated with this current Senate and President.
If President Trump has the opportunity to replace Justice Kennedy on the Supreme Court, victories like Whole Woman’s Health will be targets of a firmly anti-choice Court that will do its utmost to chip away at the fundamental right to choose whether to have children or end a pregnancy. Assuming we take Trump at his word and Roe will be overturned or eroded by the end of his presidency “automatically… because [he is] putting pro-life justices on the Court,” over 37 million women of reproductive age would live in one of 33 states in which abortion could be illegal. According to a report issued by the Center for Reproductive Rights, 22 states—nearly all of which are in the southern or central part of the country—could immediately ban abortion outright because of laws already on the books, and 11 states, with their current legislative composition, would likely pass legislation to ban the procedure. That means that there would only be 17 states, primarily on the coasts, that would recognize and maintain the constitutional right to dignity and equal citizenship exercised in choosing an abortion. This would force low-income women who are already traveling on average 200 miles for an abortion to travel even further.
When Leslie Stahl of 60 Minutes asked Trump about the ramifications of people having to cross state lines in order to obtain abortion care, he dismissed any concerns with, “Well, we’ll see what happens.” But we already know what would happen—we lived it before Roe. Abortions would not stop—only safe, legal ones would. The right if, when, and how to have a family would be determined not only by one’s zip code, but one’s income. People of means would be fine, but others might spiral further into poverty. While some would find safe methods to end a pregnancy, others might resort to methods that are dangerous, ineffective, or life threatening, and they may even be incarcerated for it.
This world that Trump envisions and is actively working towards, one in which the states determine the legality of abortion, goes against the basic concept of federalism and the legal supremacy of the Constitution. Fundamental constitutional rights are not meant to be enjoyed by some and not others just because of residency. A core purpose of the Fourteenth Amendment was to ensure that fundamental rights were enjoyed free from state infringement, in every state across the country, equally for all. When a right is protected by the Constitution, as the right to abortion is, states don’t get to decide whether to respect it or not. They have to.
It is important to note that Trump is not laying the groundwork for the assault on the right to abortion just at the Supreme Court level. Arguably, his lower court nominations have been more troubling than his choice of Gorsuch. Recently, the President nominated judges who equate abortion to slavery and consider Justice Kennedy, the Justice upon whom abortion advocates must pin their hopes, a “judicial prostitute.”
This moment in our history is perilous for the continued recognition of rights that too many people born after Roe take for granted. So much has changed since the Court reaffirmed the right to access abortion one year ago that now, more than ever, progressives must understand the tremendous power that America’s courts have to shape our daily lives. In the era of Trump, that power can do incalculable damage if we do not focus our activism and our votes as if our rights depended on it. Because they do.
Kristine A. Kippins is the Director of Constitutional Messaging for Constitutional Accountability Center, a public interest think tank and law firm dedicated to promoting the progressive promise of the Constitution’s text and history.