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How Will the Supreme Court Handle Abortion With Brett Kavanaugh on the Bench?

Several cases are making their way through the system, preparing us for an eventful 2019

Supreme Court Associate Justice Brett Kavanaugh during his ceremonial swearing in the East Room of the White House in Washington, DC, USA, 08 October 2018. Justice Kavanaugh was sworn in as the 114th Justice of the Supreme Court on the evening of 06 October.Ceremonial swearing in of Supreme Court Associate Justice Brett Kavanaugh, Washington, USA - 08 Oct 2018

Supreme Court Associate Justice Brett Kavanaugh during his ceremonial swearing in the East Room of the White House in Washington, DC.

Shawn Thew/EPA-EFE/REX Shutterstock

On October 12th, the anti-abortion movement took an important step toward its long-standing goal of overturning Roe v. Wade. Just days into the Justice Brett Kavanaugh era of the Supreme Court, the state of Indiana filed an appeal with the court seeking a determination that two different aspects of the state’s abortion law were constitutional — a step that puts anti-abortion crusaders one step closer to achieving what they’ve been after for decades.

Ever since Roe was decided in 1973, members of the anti-abortion movement has put barriers in the way of women trying to access the procedure, protested outside clinics, convinced medical schools to stop teaching abortion, used religious institutions to press their message and taken over an entire political party. Yet, while these strategies have successfully limited the availability of abortion in many places around the country, they haven’t stopped abortion as a general matter.

Rather, the only way that the movement can really end abortion is to overturn Roe, so they’ve been working on that as well.

One way to challenge a Supreme Court decision is to pass a constitutional amendment that overturns the case. While such an amendment has been introduced into Congress every session since Roe was decided more than 40 yeas ago, it has never come close to succeeding. And, given the high hurdle to amend the Constitution — two-thirds of both the House and the Senate must vote for the amendment and then three-quarters of state legislatures have to do the same — this just isn’t going to happen.

The more likely path for ending Roe is for the Court to reverse its earlier decision. And for that to occur, two things have to happen: 1) new, anti-abortion justices have to be appointed to the bench, and 2) new cases have to make their way before these new justices.

As everyone who was awake in early October knows, President Trump succeded in appointing Brett Kavanaugh to the Supreme Court. Republican Sen. Susan Collins (R-ME), who many hoped would provide a crucial vote against Kavanaugh’s appointment, may not think he’ll vote to overturn Roe, but almost everyone else does, given his not-so-veiled statements against inventing new rights in the Constitution and his ruling against a minor immigrant who sought an abortion. Along with four other Republican justices who most people believe are eager to overturn Roe (Roberts, Thomas, Alito and Gorsuch), the addition of Kavanaugh to the Supreme Court makes a solid five-justice anti-abortion majority.

On the new-cases front, this is one of the hidden — yet entirely intended — consequences of states passing so many anti-abortion laws. Yes, these laws restrict abortion in various ways, but their advocates also know that abortion rights groups will challenge them in court. When the laws are challenged, they can work their way up to the Supreme Court.

Indiana’s filing earlier this month is the first to get to the court in this new era.

Indiana passed its abortion law in 2016 when Vice President Mike Pence was governor of the state. Among other things, the law prohibits abortions when the fetus has been diagnosed with Down syndrome or another fetal anomaly, and requires all fetal remains be disposed through burial or cremation. A federal court had struck the law down as unconstitutional earlier this year, but now Indiana has asked the Supreme Court to review the case. It will be another few months before we know if the court agrees to do so, and then even if it does, we’ll wait several more months for a decision, but this case could very well result in Roe being overturned by the end of June 2019.

At the same time, the court could decide to not take this case, giving Justice Kavanaugh some time to settle into his new job before confronting possibly the most contentious legal issue of our time. It could also decide to take the case and whittle away at abortion rights more slowly, without overruling Roe. Or, as in 1992, when many thought we were in a similar position as today, one of the court’s conservatives could flip and decide to protect abortion rights. Some progressives are pinning their hopes on Chief Justice John Roberts, who voted with the liberals to save Obamacare, but so far in his career he has shown no sign that he supports abortion rights whatsoever.

It is far from a foregone conclusion that the Supreme Court will use this particular Indiana case to overturn Roe. But, with this new and Justice Kavanaugh now on the bench, it’s a possibility we have to take very seriously. And if this case isn’t the one, there are others from Alabama, Ohio and Indiana close to reaching the court and dozens of others are making their way through the system. There is almost no escaping this inevitable showdown.

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