Are opponents of Brett M. Kavanaugh’s Supreme Court nomination engaged in “a scare tactic” when they contend that his confirmation would lead to overturning Roe v. Wade ? Kavanaugh’s supporters claim as much, and some elite commentators agree, suggesting that a reversal of Roe is less likely than an incremental chipping away at a woman’s right to choose.
But what if the opposite is true? What if opponents of Kavanaugh’s confirmation are actually understating the threat to reproductive freedom? That prospect merits serious consideration at next month’s Judiciary Committee hearings.
Let’s start with Roe itself. Far from being “unlikely,” the prospect that Roe will be overturned if Kavanaugh is confirmed is the most obvious outcome. For decades, the court has relentlessly weakened Roe — rejecting a right to abortion access for poor women, upholding restrictions on a woman’s right to choose, even allowing so-called crisis pregnancy centers to mislead women about their choices. An increasingly conservative roster of justices has played judicial Jenga with Roe — pulling out one underpinning after another, waiting to see what will bring it down.
While the court did stop short of overturning Roe during Justice Anthony M. Kennedy’s tenure, Kavanaugh — who has lauded the decision’s dissenters , and is backed by an administration dedicated to casting Roe on the “ash heap of history” — is no Kennedy.
Nor will a respect for precedent save women’s rights. Notwithstanding his statement that precedent is the “anchor of the law,” the court’s most recent addition, Justice Neil M. Gorsuch, joined with his conservative colleagues in June to overturn a labor rights decision from roughly the same vintage as Roe. Kavanaugh’s inevitable pledges of respect for long-standing decisions will mean little, especially given his previously stated views rejecting some precedents.
So if Kavanaugh is confirmed, Roe almost certainly goes. But what if that is not enough for antiabortion forces? Each year, to mark the anniversary of the Roe decision, these activists gather in Washington for the so-called March for Life. These marchers do not carry signs saying “Federalism Now” or “Let the States Decide”; they march under banners reading “Stop All Abortion” and “Abortion Kills.” Why would anyone believe they will be satisfied with a mere reversal of Roe, followed by a 50-state scramble over abortion laws? Why shouldn’t we expect that, as soon as Roe goes, they will petition the Supreme Court to ban all abortions as a violation of a fetus’s “right to life” under the 14th Amendment to the Constitution?
That’s the view that some antiabortion constitutional scholars have been pushing in law reviews. And that’s what Iowa legislators pressed earlier this year when they passed an abortion ban in their state, with one saying, “If you have a life, then under the Constitution, you are guaranteed . . . due process and equal protection under the law before that life is taken away.”
To be clear, every woman’s rights are at risk if Roe is overturned: Even in so-called blue states, a woman’s reproductive freedom would turn on the vagaries of shifting legislative majorities and state capitol logrolling. But at the outset, some states would protect abortion rights, and some women would still have access to legal abortion. This is why the antiabortion forces also will not stop until they win a Supreme Court ruling striking down state laws that protect reproductive freedom.
Is there anything in the jurisprudence of Justices Samuel A. Alito Jr., Clarence Thomas, Gorsuch or a potential Justice Kavanaugh to suggest they would not come down on that side? The last two were picked by a president who pledged during his campaign to “punish women” who get an abortion and who ran on a platform that called for a constitutional amendment to ban all abortions in all states. Add to that the influence of a vice president who (as governor of Indiana) signed a law requiring women to hold a funeral for an aborted fetus. Kavanaugh himself has written a judicial opinion extolling “the Government[’s] . . . interests in favoring fetal life.” Chief Justice John G. Roberts Jr. would be the deciding vote — and, during the most recent court term, he voted with his most conservative colleagues more than 80 percent of the time.
Kavanaugh will vote to reverse Roe, and women will lose their rights as a result. That is not a scare tactic, it’s the starting line for what comes next. Not far behind will be a Gorsuch-Kavanaugh court using the Constitution — not to protect reproductive rights, but to limit or ban all abortions in all states.