Why Kennedy's Retirement May Not Result in Big Changes to Abortion Rights By Katherine Slye
Justice Anthony Kennedy's retirement has prompted national concern about the future of abortion rights (examples here, here, & here). President Trump has promised to appoint a conservative Justice to replace Kennedy. Many assume this person will hold views antithetical to abortion rights, giving the conservative wing of the court an opportunity to overturn Roe v. Wade (1973) or Planned Parenthood v. Casey (1992). This fear ignores the history of the Court and abortion. If the pro-choice side of this debate, including the NARAL Pro-Choice America and Planned Parenthood, goes back to its roots, the change on the Court might be less of a problem than they assume.
One of the fears of abortion rights groups like NARAL Pro-Choice American and Planned Parenthood is that a conservative majority on the Court will lead to an overturning of Roe. However, one key factor makes this fear premature (not necessarily unfounded, but premature).
Since President Trump appointed Neil Gorsuch to the bench, the Court has not ruled on an abortion rights case. National Institute of Family and Life Advocates v. Becerra (2018), the case that said a California law violated the first amendment of pro-life pregnancy centers, is the only case touching abortion that has come before the Court since Gorsuch joined in 2017, and thus, does not give us a good look at how he will rule in cases that directly bring into question the right to choose. (In fact, Justice Kennedy was in the majority in this case as well.) Thus, we still do not know with certainty how Justice Gorsuch will vote, especially since none of his prior decisions addressed abortion and he refused to answer a hypothetical question about it during his Senate Confirmation Hearings.
Additionally, Justice Kennedy was not as pro-choice as some might believe, thus a President Trump appointee might not change the balance of the Court in reality, at least in relation to abortion. In the last three cases that directly addressed abortion laws, Webster in 1989, Casey in 1992, and Gonzalez in 2008, the outcomes made it more difficult to get an abortion, or in the case of Gonzalez restricted access to a type of abortion procedure, and Justice Kennedy was in the majority. This means he voted to make it harder to obtain an abortion.
Any conservative replacement by President Trump would probably vote in a similar manner to how Kennedy has on the abortion issue, thus changing nothing when it comes to the balance of the Court on the issue of abortion rights.
Given these facts, one might ask why pro-choice groups continue to utilize the courts, and especially the Supreme Court, to fight the abortion rights battle. It seems as if it is a losing situation given the make-up of the Court currently and the probable make-up after the next appointment. It seems like an ideal time to return to their roots and fight this battle in the legislature, especially at the state level.
In the early years of NARAL Pro-Choice America (then the National Association for the Repeal of Abortion Laws), they focused on repealing restrictive abortion laws state-by-state before the Roe decision effectively “repealed” them all in 1973 (Schlesinger Library NARAL Archives). They were successful, New York in 1970 is an example, and though it was looking to be a slow and difficult process, it was working.
Given that there are many state abortion laws that impact a woman’s right to choose abortion across the county –waiting periods, informed consent laws, and parental involvement laws – returning to a state level focus of repeal (despite the growing number of red states) might be a better route than the increasingly conservative courts.
Elections every two to four years can change the make-up of state legislatures, while the Supreme Court make-up is only changed or altered when a Justice retires or dies on the bench, which, as we have seen, does not happen with great frequency. Kennedy served on the bench for over 40 years, 30 of them on the Supreme Court. Thus, a state level focus on elections and repeal of restrictive abortion laws seems like the more likely route to protect the right to choose, while using the courts seems like an almost guaranteed loss for those that support abortion rights.
While the next appointee to the High Court might be more conservative than Justice Kennedy on many issues, abortion is not one of them. The Court has delivered anti-choice decisions since the 1980s, despite four appointees from Presidents Clinton and Obama, with the help of Justice Anthony Kennedy. Thus, the courts no longer appear to be the best way to defend or protect abortion rights, so activists and pro-choice organizations need to look to other avenues if they want to preserve the remaining essence of Roe.
Katherine Slye, MA is a PhD Candidate at the University at Albany working on her dissertation, which examines the past lobbying strategies of abortion interest groups, "How Choice is Made in the Choice Debate."