Anshul Barnwal | Dartmouth College
Assuming everything goes according to plan for Republicans, Brett Kavanaugh will become the ninth and newest Supreme Court justice sometime in the next few weeks. Kavanaugh’s nomination follows the confirmation of Neil Gorsuch as well as the refusal of Republicans to even consider President Obama’s 2016 nominee Merrick Garland, and has stirred up significant controversy in the wake of certain documents leaked by Senate Democrats in the past week. Perhaps the most significant issue surrounding Kavanaugh, however, is abortion and his potential repeal of the landmark case Roe v. Wade. That case mandated that abortion be legalized throughout the entire country, and Kavanaugh’s record suggests that he will vote to repeal it. After all, he did try to uphold a law denying one immigrant teen from obtaining an abortion, citing bogus family reasons as the rationale, and was awfully evasive on abortion during his confirmation hearings.
Aside from Kavanaugh, it seems that there are three other justices virtually guaranteed to vote to overturn Roe v. Wade, at least gradually. Justice Clarence Thomas has called for Roe to be struck down numerous times, most recently asserting in Gonzales v. Carhart that past abortion cases have no basis in the Constitution, and agreeing with a 1992 dissent that said abortion is “not a liberty protected by the Constitution.” Justice Samuel Alito is likely to be against abortion rights as well, as he ruled two years ago that onerous Texas regulations on abortion clinics were constitutional in Whole Woman’s Health v. Hellerstedt, and wrote in a 1985 letter that the Constitution does not protect the right to abortion. Finally, Justice Neil Gorsuch, who Trump nominated to be “in the mold of Justice Scalia” (who was famously anti-abortion), has a record that plainly suggests a proclivity to repeal Roe rather than to keep it.
Justices Kagan, Ginsburg, Sotomayor and Breyer are all solidly in favor of abortion and Roe v. Wade, which means that the swing vote goes to Chief Justice John Roberts. FiveThirtyEight recently calculated that once Kavanaugh is confirmed, Roberts will be the most centrist judge on the court, making him a key figure in close decisions. However, this is likely bad news for pro-choice voters-- Roberts’ wife is a notable pro-life activist, and he has stated numerous times that Roe should be overturned.
With that said, Roberts as well as Alito and Gorsuch have made clear on numerous occasions that landmark cases such as Roe cannot be overturned so easily. Essentially, numerous other cases use Roe as precedent and build on it in ways that would make legislating a plain repeal a political and logistical nightmare. This means that the way that national abortion rights will fall will likely be a steady, slow removal, one that could take multiple cases spanning months or years.
Unless the next President is a Democrat and a few conservative justices retire or die during their term, it seems that this gradual repeal is highly likely to happen. In that scenario, abortion will not be outlawed, but rather left to state governments to decide. None of the conservative justices have shown any sign that they would ban abortion outright; instead, their view is that because the Constitution does not explicitly grant the right to abortion, it should be left up to state governments. This means that liberal states like California and New York will retain abortion rights, while more conservative states such as Texas will almost certainly ban abortions immediately. Abortion rights will persist, then, for a significant swath of the country, even if the worst case scenario does occur.
Brett Kavanaugh is almost certainly going to be confirmed as the next Supreme Court Justice, and activists are rightfully concerned about abortion rights following his nomination. Fortunately, any repeal of Roe v. Wade should be slow if it even occurs at all, and many states will retain abortion rights no matter what. Pro-choice activists should continue to oppose Kavanaugh with everything they’ve got.