It’s Naive to Think a Conservative Supreme Court Wouldn’t Target Roe v. Wade

With Brett Kavanaugh’s nomination to the Supreme Court, the balance of powers is set to shift heavily rightward – with potentially dire consequences for women’s rights. Roe v. Wade, the 1973 case that legalized abortion across the United States, has become something of a litmus test in appointments, even as administrations swear it doesn’t play a role. While liberal judges pledge to uphold Roe, conservative ones like Kavanaugh often resort to vague responses about respecting precedent, which gives moderate Republican senators — in this case, Susan Collins and Lisa Murkowski — a guilt-free green light to vote for judges supported by the right-wing Federalist Society.

This is what Kavanaugh himself did during his 2006 confirmation hearings to the D.C. Circuit Court: When Sen. Chuck Schumer asked his opinion on Roe, Kavanaugh dodged, responding that he would “follow Roe v. Wade faithfully and fully” because the case is “binding precedent of the Court,” but refusing to share his own view. While Supreme Court decisions are indeed binding on lower courts, the Supreme Court can overturn itself, and Kavanaugh has shown that he’s not sympathetic to abortion rights. Kavanaugh has applauded the late Chief Justice William Rehnquist’s view that “unenumerated rights could be recognized by the courts only if the asserted right was rooted in the nation’s history and tradition,” — in other words, that rights which are not specifically granted by the Constitution must at least have been traditionally accorded to the American people. He believes Supreme Court precedent already conflicts with itself on this issue – a perfect opening for overturning Roe. And he also heard an important abortion case when he was on the D.C. Circuit Court, and held that the government was not imposing an “undue burden” on an undocumented teenager by not letting her terminate her pregnancy in a timely manner. (That decision was overturned, and Kavanaugh vigorously dissented).

Like all savvy, ambitious legal minds, Kavanaugh has studiously avoided saying he would overturn Roe, or that he even personally objects to the decision. But he very pointedly won’t say he supports it – and that says it all. With Kavanaugh as the potential nominee, the right to abortion now faces the biggest threat in a generation.

This threat didn’t materialize overnight. Anti-abortion lawmakers have been steadily eroding the broad abortion rights that Roe promised for decades, making safe, legal abortion a class- and location-dependent right.

In fact, when the Roe v. Wade decision was issued, it didn’t even make the front page of the New York Times, and it was Catholics, not Evangelicals, who were the chief opponents. But in the aftermath of desegregation and the red state backlash against increases in racial equality and the shifting role of women in society, abortion became a convenient touch point in the culture wars, newly cast in terms of “states rights” — long code for the right of segregationist rule — and “religious freedom.” Segregationist Evangelicals took up abortion opposition with new force in the late 1970s, correctly seeing it as a stealthy and effective vehicle for the rest of their agenda.

They’ve since been able to chip away at Roe in large part because of a Supreme Court decision that saved abortion rights but placated the more moderate justices: 1992’s Planned Parenthood v. Casey. That case looked at a series of Pennsylvania laws restricting abortion access. Anti-abortion advocates hoped, and feminists feared, that the court would use the case to overturn Roe wholesale; instead, it held that states could restrict abortion access unless the restrictions posed an “undue burden” on women.

Abortion rights advocates were relieved that Roe stood, but Casey was nonetheless a major blow. Then-Chief-Justice William Rehnquist dissented from the majority opinion – he would have happily overturned Roe wholesale – but noted that Casey merely “retains the outer shell of Roe v. Wade,” writing that “Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere façade to give the illusion of reality.”

The pace of restrictions climbed after Casey, increasing especially precipitously around 2011, when controversy around abortion coverage in the Affordable Care Act brought more conservative dollars to the cause. Moneyed right-wing groups regularly draft anti-abortion legislation for GOP lawmakers, much of which has been introduced verbatim across the country. “As we’re moving forward at the state level, we end up hollowing out Roe even without the Supreme Court,” Charmaine Yoest, the former president and CEO of Americans United for Life, the organization that writes much of the country’s anti-abortion legislation, told the New York Times in 2012. “That’s really where our strategy is so solid.”

Now, women face a smorgasbord of restrictions to what the Supreme Court technically says is their right, and those restrictions vary widely from state to state. There are states where doctors are legally required to tell women that abortion may cause breast cancer or suicide (there’s no evidence either of those things are true); where women are required to undergo an ultrasound; where health care providers can withhold medical information from a pregnant woman if they think she may seek an abortion; and where abortion clinics themselves have to adhere to set a rules not required of any other health center. States including Colorado, North Dakota and Mississippi all put more radical “personhood” legislation on the ballot, which defines legal personhood as beginning the moment a sperm fertilizes an egg and could outlaw IVF and some forms of birth control. (That more than half of fertilized eggs naturally don’t implant in the uterus, so this law would make the American mortality rate suddenly astronomical and demand inquiries into women’s menstrual cycles to prevent murder or negligent homicide, hasn’t been quite worked out yet.) Some states have attempted to outlaw abortion after eight weeks, before many women even know they’re pregnant. Restrictions have gotten so tight in some more conservative states that more women are turning to self-induced DIY methods.

Four states have laws already on the books that will immediately ban abortion if Roe is overturned; another 10 still have pre-Roe abortion bans they could choose to enforce; and seven more have indicated they will ban abortion if Roe goes.

The Supreme Court based Roe, and other cases including those legalizing contraception, on the “right to privacy” — words that are not written in the constitution itself, but, the court said, are reasonably ascertained by many of the amendments. For right-wing legal scholars, this makes Roe a point of dogma. Judges who overturn Roe won’t be perceived by conservatives as activists doing away with decades of precedent, but rather as intellectually honest jurists, reading the constitution as intended.

That even the architects of the constitution never intended it to be set in stone — it was, after all, written on paper, included the ability to amend, and entrusted judges to interpret its words given evolving social norms — is easily ignored. The idea of a “living, breathing” constitution interpreted with a bent toward justice, equality and human rights (the theory that allowed the court to end national shames including “separate but equal” racial policies and school segregation) is treated largely as an act of great treachery by many conservatives. More accurately, it’s a threat to the historical legal supremacy of white men.

That desire for legal authority over women didn’t go away with Roe, as evidenced by the political obsession with our most intimate decisions. And while millions of women have made use of this essential right to decide when and if to have a baby — while far fewer have died, and many more reach heights of purpose and happiness not achievable without being able to walk one’s own path — we’ve never enjoyed the peaceful dignity of living in a country where the rights of women are presumed and implicit. It’s clear that getting Kavanaugh — who pointedly refuses to say he supports Roe — on the Supreme Court is conservatives’ final push to strip women of their right to safe abortion access. It’s a hit we’ll have long seen coming.

Filipovic is an attorney and the author of The H-Spot: The Feminist Pursuit of Happiness