At a JW Marriott hotel a few blocks from the White House last January, Denise Burke, a cheerful-looking 52-year old woman with wispy blond hair and a lopsided smile, explained to attendees of the 2018 Evangelicals For Life conference exactly how she and her colleagues intended to make abortion illegal again. Burke is a lawyer with the Alliance for Defending Freedom, a pro-life legal juggernaut that’s had its hand in many of the most contentious religious freedom cases to reach the Supreme Court over the past 23 years.
ADF’s strategy was simple: Convince lawmakers to introduce flagrantly unconstitutional legislation – like Mississippi’s 15-week ban on abortion, which ADF helped craft – fully aware that those laws would be challenged by pro-choice groups. “We’re kind of basically baiting them: Come on, fight us on turf that we have already set up and established,” Burke said. The plan hinged on one core assumption: By the time any one of these cases made it all the way through the legal system, a majority of justices on the Supreme Court would be pro-life.
Newly emboldened by the 2017 appointment of Neil Gorsuch and giddy at the prospect of seeing a second Trump nominee added to the Supreme Court, pro-life groups like ADF have spent the past year and half busily laying legal groundwork that could eventually give them a shot at “eradicating” Roe v. Wade once and for all. It’s a departure for groups that had spent years devoting their energy to chipping away at abortion access more discretely via regulations on things like the width of hallways, the types of doors, even the angle at which water spurts out of a drinking fountain – innocuous demands that were still onerous enough to force clinics out of business.
On Wednesday afternoon, a few hours after the Supreme Court ended its 2018 term, Associate Justice Anthony Kennedy announced his plans to retire, effective July 31st. Kennedy, 81, is commonly considered the court’s swing vote, but the Reagan-appointee was a surprisingly reliable ally for women and reproductive rights advocates during his tenure on the bench. Two years ago, he sided with his liberal colleagues in Whole Woman’s Health v. Hellerstedt, which declared states could not create restrictions that placed an undue burden on women seeking an abortion. And in 1992, the last time Roe was seriously under threat, Kennedy cast the deciding vote in Planned Parenthood v. Casey, affirming the court’s opinion that a woman’s right to an abortion is protected by the 14th Amendment to the Constitution.
Which is why Kennedy’s impending departure came as a such a gut punch for reproductive rights advocates. “Devastating,” Nancy Northup, president of the Center for Reproductive Rights tells Rolling Stone. “This is a divisive time in our nation and on the Supreme Court in particular, and Justice Kennedy has been an important vote on women’s reproductive rights.”
Trump promised Wednesday to nominate a justice on the same list of names from which he plucked Gorsuch – individuals whose resumes and ideologies align with the conservative Federalist Society, whose executive vice president, Leonard Leo, vetted the roster. “I would assume 100 percent of the people on that list would reverse Roe v. Wade,” Northup says.
“Trump has been unequivocal,” Planned Parenthood’s Kevin Griffis tells RS. “He has said that the next justice he’s going to appoint is going to be a pro-life justice who is going to oppose Roe v. Wade.”
Court-watchers and advocates on both sides of the reproductive rights fight agree that if Trump appoints a justice to the Supreme Court before the midterm elections in November, a case challenging Roe could appear on the docket as soon as next term. And legal experts, like reporter Jeffrey Toobin, are inclined to believe the majority will vote to overturn it. “Anthony Kennedy is retiring. Abortion will be illegal in twenty states in 18 months,” Toobin tweeted Wednesday.
That might sound like hyperbole to anyone under the age of 45 – individuals who have lived their entire lives with the federal government’s guarantee that they were entitled to a safe and legal abortion – but the outlook may actually be worse than Toobin predicts, according to an analysis by the Center for Reproductive Rights. “We analyzed which states have passed restrictive regulations, we’ve looked at their state constitutions and came to the conclusion that over 30 states would make abortion inaccessible for women if Roe v. Wade were overturned,” Northup says.
Four states – Illinois, Kentucky, Louisiana and South Dakota – already have “trigger bans” on the books, legislation that automatically outlaws abortion in the state the instant Roe is overturned. Three other states – Arkansas, Missouri and North Dakota – have “statements of policy” announcing their intention to ban abortion if and when it’s federally legal to do so. All told, there are 24 states that would almost certainly ban abortion outright immediately, according to CRR’s analysis, and seven other states plus the District of Columbia where there is a high likelihood access would disappear as well.
With the fight over Roe imminent, conservative lawmakers, with the help of organizations like ADF, have been locked in competition to enact stricter and stricter laws in hope that theirs will be the case that ends federal protections for abortion. (Reached for comment via email, Burke wrote, “From time to time lawmakers ask ADF attorneys to review the constitutionality of proposed legislation. ADF supports states’ important and legitimate efforts to protect the health and safety of women and children.”) After Mississippi and Louisiana passed 15-week abortion bans, Iowa’s governor one-upped them by signing into law a prohibition on abortions just six weeks after conception, before many women even know they’re pregnant.
“Mississippi has said that they would like for their ban to be the vehicle for overturning Roe v. Wade,” Northup says. “There are unquestionably cases going through the federal courts that could wind up before the Supreme Court next year.”
The risk won’t be limited to abortion rights, either: There are several cases that could impose more stringent restrictions on birth control access as well. Just this past Tuesday, CRR filed a case challenging the Trump administration’s attempt to gut an existing provision of the Affordable Care Act that protects no-copay birth control.
Hours after the Kennedy news broke, reproductive rights advocates were already gearing up for a long fight. “This is not a drill,” Jennifer Dalven, director of ACLU Reproductive Freedom Project tells RS bluntly. “The time to make your voices heard is now.”
Northup echoes that sentiment. “The threat is real,” she says. “But nobody should assume this is a done deal. The important thing right now is to have all eyes on the Senate.”
Republicans currently hold a razor-thin majority in the Senate. With ailing Sen. John McCain (R-AZ) unlikely to return to Washington and Democrats unwilling to support a second Trump nominee, McConnell will need the vote of every member of his caucus in order to confirm Kennedy’s replacement.
It’s not clear yet that he will have those votes: Senators Susan Collins (R-ME) and Lisa Murkowski (R-AK), have both, historically, been vocal supporters of reproductive rights. Together, the senators helped tank a bill to repeal the Affordable Care Act last summer, in part because it included a provision that would have striped funding for Planned Parenthood.
This fall, those senators will have the power to affirm their commitment to reproductive rights once again. Whether they’ll have the political courage to do it, though, is an open question. Neither senator’s office responded when Rolling Stone reached out to ask whether they would vote to confirm a justice that would overturn Roe.
Planned Parenthood is already making the case that a confirmation vote should be delayed until after the midterm elections. “We should apply the McConnell rule,” Griffis says. “There should be no vote until there’s a new Senate in place in January.” Griffis, for his part, is taking comfort in the fact that threats to women’s rights have been the number-one motivating factor for people who have gotten politically involved since Trump’s victory, according to a survey by the Kaiser Family Foundation.
Voters, Dalven says, “need to let their elected representative, and particularly their senators, know where they stand… showing their support for the right to abortion and access to abortion in any way possible – whether that’s at demonstrations, through letters, through polls, any way possible.”
“The time to do it is now.”