Kennedy’s retirement puts abortion in play
Justice Anthony Kennedy’s retirement from the U.S. Supreme Court puts conservatives in striking distance of one of their most cherished goals: overturning the landmark Roe v. Wade abortion-rights ruling.
The court’s swing vote for the past dozen years, Kennedy sided with his liberal colleagues on gay rights and sometimes on discrimination and the death penalty. His Donald Trump-appointed successor could shift the court to right on each of those issues.
But nowhere will Kennedy’s departure be more significant than on the politically explosive issue of abortion. Kennedy was a Roe supporter, and the remaining justices include four who either have backed abortion restrictions or in all likelihood would. Abortion could be the central issue in a battle over Trump’s nominee in the Senate, where the Republicans’ slim majority leaves little room for defections.
“Because President Trump will nominate the next Supreme Court justice, a woman’s constitutional right to access legal abortion is in dire, immediate danger,” said Ilyse Hogue, president of NARAL Pro-Choice America.
Trump vowed during the campaign to appoint “pro life” justices who would overturn Roe, which legalized abortion nationwide. His first appointee, Neil Gorsuch, hasn’t ruled on the issue directly but joined the majority this week to block a California law that required anti-abortion pregnancy centers to tell patients how to get government-subsidized abortions.
Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas all have consistently voted to uphold abortion restrictions. Thomas has said he would overturn Roe.
Republicans, who hold a 51-49 advantage in the Senate, could confirm Trump’s nominee without any Democratic votes. A potentially pivotal lawmaker, Republican Sen. Susan Collins of Maine, said Wednesday she views Roe as “settled law.”
“It’s clearly precedent, and I always look for judges who respect precedent,” Collins said.
Another moderate Republican, Sen. Lisa Murkowski of Alaska, told reporters that Roe “is one of those factors that I will weigh, just as I weighed it with the other nominations that came before us.”
Democrats moved quickly to try to make Roe a dominant issue, both in the confirmation process and the struggle for control of Congress in the November elections.
“The Senate should reject, on a bipartisan basis, any justice who would overturn Roe v. Wade or undermine key health care protections,” said Senate Minority Leader Chuck Schumer of New York.
Sen. Jeff Merkley of Oregon fired off a fundraising email warning supporters that the next justice could mean “Roe v. Wade being overturned.”
States have been trying to test Roe. Iowa is defending a new law that would bar most abortions once a fetal heartbeat can be detected — typically, about six weeks into pregnancy.
Last month, the Supreme Court let Arkansas
Kennedy, who came to the White House on Wednesday to tell the president that he was retiring, disappointed conservatives in 1992 when he co-wrote an opinion reaffirming the constitutional right to abortion. Although he later backed some restrictions — voting to uphold a federal ban on some lateterm abortions — he cast the decisive vote to strike down Texas regulations on clinics and doctors in 2016.
A shift on abortion could be just the beginning. Kennedy was a crucial vote for gay rights and wrote the historic 2015 ruling legalizing same-sex marriage.