Before President Trump even announced his nomination Monday night to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court — federal appeals court judge Brett Kavanaugh — Democrat and Republican senators (charged by the Constitution to provide “advice and consent”) as well as interest groups of all stripes had already launched fervent campaigns to either secure or stop the nominee’s confirmation.
Roe v. Wade, the 1973 court case that ensured a woman’s constitutional right to an abortion, has become the touchstone of several of these campaigns, particularly among administration opponents. According to pro-choice advocates, if Mr. Trump’s nominee delivers on the president’s campaign promise to only appoint justices willing to overturn the historic decision, a woman’s control over her own reproduction will be lost for at least a generation.
And they are right. But focusing so much on Roe is a mistake.
Mr. Trump is in the catbird seat here, even more than he probably realizes. With Republicans in control of the Senate and several “red state” Democrats under electoral pressure to support the president, any nominee — even one who explicitly calls for a reversal of Roe — could probably still be easily confirmed. Spending time and money shouting about Roe to block the confirmation of Judge Kavanaugh is likely spitting into the wind.
The best that can be hoped for, some say, is that Judge Kavanaugh is willing to say publicly that Roe is “settled law.” This is, in fact, what the key Republican Sen. Susan Collins has already said she wants. And it sounds good, right? It sounds like a woman’s basic right to choose will be secure, right? It sounds like progressives will have achieved at least a small victory, right?
No, no and no.
For those not closely following the story, Justice Kennedy’s, 81, was the “swing” justice on an otherwise ideologically divided court, and he often provided the fifth vote needed to secure a majority on the nine member court. For liberals in particular, his vote was critical to several major issues including gay rights, affirmative action, the death penalty and, of course, abortion, through the maintenance of Roe.
Here’s the fundamental problem with that. In the 1992 case Casey v. Planned Parenthood of Pennsylvania, five justices, including Justice Kennedy, upheld the core of Roe — that the Constitution protects a right to abortion — but allowed multiple restrictions on that right. More importantly, the court developed a new legal standard for evaluating abortion laws: State governments could regulate the procedure, as long as doing so did not place an “undue burden” on the woman’s right to terminate her pregnancy.
What this standard actually requires is unclear. The Casey opinion provides the entirely unhelpful clarification than an “undue burden” is a “substantial obstacle.” Some types of restrictions (spousal consent, “partial birth” bans that ignore the health of the mother) have been deemed “undue burdens”; others (24 hour waiting periods, some types of “informed consent”) have not. Aside from the ambiguous doctrinal language and the few examples, there is not much to go on. Like so much of the court’s jurisprudence, the actual meaning of the legal rule is by and large whatever the justice thinks it is.
In the hands of the “right” justice then, it could be open season on abortion rights, all while leaving Roe undisturbed. A 72-, 96-, or 100-plus- hour waiting period? Sure. A trans-vaginal fetal ultrasound where the woman has to observe the images and listen to the fetal heartbeat? Fine. An “informed consent” that describes fetal development in detail and includes graphic pictures? Yep. A blanket prohibition on abortion after six weeks, well before many women even know they are pregnant? Of course.
Short of a total and complete prohibition, states could make seeking abortion so arduous as to be (legally) impossible. Justice Kennedy would never have allowed this, but this newest Trump appointee to the court almost certainly will. As long as he finds that the restriction does not generate that “undue burden,” it is both constitutionally permissible and consistent with Roe.
And there’s the rub: You don’t need to overturn Roe to get rid of the right to abortion. Given the “undue burden” standard, all you need is a certain type of regulation and a certain type of new justice on the court, and the right can just be regulated away. As a result, any reassurance from Judge Kavanaugh that Roe as “settled law” is basically worthless. It’s better than the alternative, yes, but not by more than a tiny fraction.
It may be depressing for progressives to admit it, but there isn’t even a small success to be had here. Regardless of whether Judge Kavanaugh turns out to be openly opposed to Roe or not, the days of turning to the court for any kind of real reproductive freedom are over. It’s time to allocate resources elsewhere. They will surely be needed.
Claire B. Wofford (firstname.lastname@example.org) is an associate professor in the Department of Political Science at the College of Charleston in Charleston, S.C.