Of course, pro-choice advocates began losing sleep the minute Donald Trump was elected. During the 2016 presidential election, Trump claimed that Roe v. Wade – the 1973 landmark decision establishing that women have a constitutional right to access abortion – would be “automatically” overruled by his Supreme Court picks.
Shortly after taking office, Trump announced his first Supreme Court nominee, the conservative Neil Gorsuch, who replaced the conservative Justice Antonin Scalia. Swapping one conservative for another didn’t change much for Roe. But now, a second spot has opened up on the court with the retirement of Justice Anthony Kennedy – who has been a key vote to preserve abortion rights.
From my vantage point as a constitutional law professor who also litigates reproductive rights cases, the future of Roe v. Wade looks more tenuous than it ever has.
A New Vacancy, a New Court
Replacing Kennedy with a more conservative judge could fundamentally remake constitutional doctrine in this area.
In 1992, Justice Kennedy was a swing vote to preserve Roe v. Wade in a 5-4 decision known as Planned Parenthood v. Casey. More recently, in the 2016 case of Whole Woman’s Health v. Hellerstedt, Justice Kennedy’s vote was critical to the five-justice majority, which again affirmed the right to choose as fundamental.
But Justice Kennedy’s proposed successor Brett Kavanaugh has expressed hostility to Roe. In a public speech last year, Kavanaugh praised the late Chief Justice William Rehnquist’s dissent from the Roe decision. He also voted against an undocumented minor in government custody who wanted an abortion, complaining that the judges who voted in favor of the young woman were granting a right to “abortion on demand” and arguing that the woman should have to delay the procedure…