Update: On Monday, July 9th, President Trump announced conservative Brett Kavanaugh as his official pick for the U.S. Supreme Court. Kavanaugh will soon meet with individual senators and prepare for a confirmation hearing, at which point the Senate will vote on whether or not he will be confirmed.
When news broke on Wednesday, June 27th, that Justice Anthony Kennedy would be retiring at the end of July, there was one question on the mind of every American woman: What will happen to Roe v. Wade?
During the 2016 presidential election, Donald Trump was clear about his intention to nominate a conservative judge to the Supreme Court who could help overturn the landmark 1973 decision that made criminalizing and restricting abortions federally illegal. Now, President Trump has his second opportunity to nominate a judge, and it might mean serious changes to American law and policy.
Although the 81-year-old Supreme Court judge was a dyed-in-the wool conservative, Justice Kennedy was an important moderate voice in the Supreme Court. His vote was time and again a crucial swing vote on some of the most important court decisions handed down in recent years — including the 2015 ruling that legalized same-sex marriage nationwide and the 2016 ruling that upheld affirmative action practices. With Kennedy’s retirement, Trump has another opportunity to nominate a right-leaning judge to replace him, one who will continue to move the court in a more conservative direction — much like the president’s first appointment, Neil Gorsuch, has already started to do.
Although this is only his first full term in the Supreme Court, the presence of newly appointed right-leaning Justice Gorsuch has already had a monumental effect on U.S. law and policy. Just this week, the court’s conservative majority handed down several key 5-4 decisions that had the right cheering, including the ruling to uphold Trump’s travel ban against majority-Muslim countries and one that struck down a 41-year-old precedent allowing public unions to collect fees from non-union members. Since Trump has already stated his intention to nominate another conservative judge from the same list of possibilities that led him to select Gorsuch, it’s safe to assume that Kennedy’s replacement will have an enormous and far-reaching effect on the court.
But what would it take for Roe v. Wade to be overturned in court, and how would it change abortion access in America? The answer to both of those questions are complicated but extremely important for Americans — especially women — to understand.
Assuming that Congress confirms Kavanaugh, he will be in a position to both uphold the right of Congress to ban abortions and overturn Roe v. Wade, essentially granting states the right to restrict or ban abortions as they see fit. That is, if the right case is presented to the Supreme Court.
Here’s how it could work: a state that wants to restrict or ban abortion will have to create an “extreme obstacle” to abortion access (Iowa’s counseling requirements, Kentucky’s ultrasound provision, and Arkansas’ attempt to ban medical abortions, for example). Then, pro-choice advocates will claim the law is unconstitutional and sue the state. When the case is taken up by the Supreme Court, a new conservative majority would vote that the law in question does not create an “undue burden” for women and is legal, thus reversing the legal precedent set by Roe v. Wade.
So what would a world without Roe v. Wade look like?
Overturning the decision would not make abortion illegal automatically, but it would give individual states and Congress the ability to regulate it however they choose. For some states, that could be an all-out abortion ban.
There are several states, including Arkansas, South Dakota, and Texas, that had abortion bans on the books before Roe v. Wade that were never formally repealed. That means, if the ruling is overturned, those states could implement abortion restriction laws immediately and, with the support of the governor or attorney general, those laws could be enforced state-wide right away.
On a federal level, it isn’t hard to imagine a right-wing, anti-choice conservative bringing a bill to Congress that would ban, criminalize, or severely restrict abortion nationwide. Without the precedent of Roe v. Wade, it would be considered well within the rights of Congress to pass an abortion law that affects a woman’s right to choose in every state.
Needless to say, there are a lot of people worried about the fate of Roe v. Wade and the future of safe, legal access to abortion in America. If you’re one of them, there are a few things you can do to defend the landmark decision and prevent Trump’s nominee from reversing a ruling that gives women the right to choose what happens to their bodies.
First, it is important to support organizations like Planned Parenthood, the Center for Reproductive Rights, and NARAL Pro-Choice America at a time when access to abortion is under attack. Find local branches of these organizations to volunteer for, or donate money if you can. You can also call your representatives and demand they delay a vote on Trump’s Supreme Court nominee until after the midterm elections. In 2016, the Senate majority leader Mitch McConnell set a precedent when he refused to vote on then-president Obama’s nomination, Merrick Garland. You can call key senators, like Susan Collins of Maine or Lisa Murkowski of Alaska, and ask them to postpone any confirmation hearings for a Supreme Court justice until the election is over.
The future of the Supreme Court may be murky, but one thing is crystal clear: The fight for safe, legal abortion is far from over.