Conservatives and liberals alike think Trump nominee Brett Kavanaugh could shift the Supreme Court further right on abortion issues.
The question, they say, is not whether Kavanaugh’s addition to the court would be a shift, but whether it will lead to a complete overturning of the Roe v. Wade decision legalizing abortion or the upholding of restrictions that would make the decision obsolete.
{mosads}Anti-abortion groups cheered the announcement Tuesday but stopped short of calling it a surefire way to reverse Roe v. Wade.
Instead, advocates such as Marjorie Dannenfelser, president of the Susan B. Anthony List, suggested they thought it could lead to the allowance of states to enact heavy restrictions against abortion.
“I have great hope because there may now be five judges who will allow states, under the authority of the Tenth Amendment, to enact their own will into law when it comes to the abortion issue,” Dannenfelser said.
Kavanaugh’s record on abortion is relatively sparse.
Liberals point out that Kavanaugh dissented from a ruling that allowed an unaccompanied minor in the custody of the Department of Health and Human Services (HHS) to get an abortion.
He called the decision “radically inconsistent with 40 years of Supreme Court precedent.”
“The majority apparently thinks that the government must allow unlawful immigrant minors to have an immediate abortion on demand,” he wrote in language that Senate Democrats are now using against him to pressure members to vote “no” on his nomination.
On a dissonant note, Kavanaugh declined to sign on to another dissenting opinion that argued unaccompanied minors had no constitutional right to abortion.
Liberals are also pointing to Kavanaugh’s dissent in Priests for Life v. HHS to argue he almost certainly would vote to heavily restrict abortion rights or even topple Roe v. Wade.
In that case, Kavanaugh wrote that ObamaCare’s contraception requirement infringed on the rights of religious organizations.
Kavanaugh said in his 2006 confirmation hearing for the D.C. Circuit Court that he considered Roe v. Wade to be binding precedent, but abortion rights supporters along with Democratic senators say that doesn’t mean much.
“He did say that, and then he actually did the opposite in his ruling on the Jane Doe Case, when he split from his circuit,” said Ilyse Hogue, president of NARAL Pro-Choice America. She was referring to the unaccompanied minor case.
“That, combined with his track record, and his dissent in Priests for Life vs. HHS, plus the promise of Donald Trump to only nominate justices committed to overturn Roe v. Wade negates any promises he’s made, and also casts doubt on his ability to tell the truth,” she said.
Trump vowed during his presidential campaign to only nominate “pro-life” justices who would overturn Roe v. Wade but said last week he wouldn’t ask potential nominees about it.
At the same time, his “shortlist” of potential Supreme Court nominees was put together by the Federalist Society. The group’s executive director, Leo Leonard, is an anti-abortion conservative who advised Trump on his pick.
Anti-abortion groups toned down their rhetoric on Roe v. Wade after Justice Anthony Kennedy announced his retirement. But it’s been a longtime goal of the movement to get more anti-abortion justices on the court in hopes of overturning the decision.
As recently as September, Dannenfelser said: “If we can get even one more [justice] like Neil Gorsuch, we’re talking about overturning Roe vs. Wade.”
At the organization’s gala this spring, Dannenfelser remarked that if more anti-abortion senators were elected in November, “we have a fighting chance to do what the pro-life movement has wanted since 1972: overturn that great stain on our national conscience, Roe v. Wade.”
Legal scholars aren’t so sure and say Kavanaugh’s stance is not crystal clear.
“We don’t know whether he believes that Roe is wrongly decided and should be overturned. He has never indicated that. He has never said that,” said Daniela Kraiem, associate director of the Women and the Law Program and American University’s Washington College of Law. “What I can say about Kavanaugh is that it’s quite clear from his record he appears to be willing to go quite far in limiting abortion, even if he was not going to directly overturn Roe v. Wade.”
Andrew Bath, executive vice president and general counsel at the Thomas More Society, an anti-abortion law firm, also said it’s difficult to say how Kavanaugh would rule. But given his approach to the law and the Constitution during his 12 years on the D.C. Circuit Court of Appeals, Bath believes Kavanaugh could vote to overturn Roe if given the opportunity.
“While he’s never had a case that would present the opportunity to overturn Roe v. Wade, we think that if he remained consistent and judged the way he’s judged for the past 12 years, we think there’s a chance he would vote to overturn Roe,” he said.
Several abortion cases percolating in the lower federal courts mean the Supreme Court might have the chance to rule on an abortion case within the next few years.
Total bans on abortion and certain abortion methods are in the pipeline, as well as bans on abortion after a pregnancy reaches a certain point.
If the Supreme Court decides to take a case on a total abortion ban, that would give it the opportunity to overturn Roe v. Wade, said Heather Shumaker, senior counsel at the National Women’s Law Center.
“It’s a very real possibility that we could see a ban brought to the Supreme Court. That could be a direct challenge to whether Roe is still the law of the land,” she said.
Another approach anti-abortion groups have taken in recent years is to push for laws restricting abortion at the state level, potentially giving the Supreme Court the opportunity to decide on its legality.
“We could see access to abortion being diminished so dramatically that Roe has very little meaning anymore and the difficulty of accessing abortion is so extreme that it’s only a right on paper,” she said.