In recent days, after President Trump’s nomination of D.C. Circuit Judge Brett Kavanaugh to the U.S. Supreme Court, pundits on the right have been trying to reassure Americans that Roe v. Wade is not in jeopardy and that the high court will not overrule this seminal decision. Their arguments are fallacious, fully intended to blunt political opposition to Judge Kavanaugh, enabling conservatives to quickly claim control of the high court for at least a generation.
Conservatives are pushing this “don’t worry line” to confuse the public before they fully understand the dramatic changes to the American legal system that will occur and to make their radical takeover of the court a fait accompli before the November elections, when Democrats might regain control of the Senate and the court confirmation process.
If you think that Roe v. Wade can’t be overruled, think again.
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It is not commonly known that in 1992, in Planned Parenthood v. Casey, a case I argued in the U.S. Supreme Court, then-Chief Justice William Rehnquist drafted an opinion overturning Roe. The case was a challenge to a variety of Pennsylvania abortion restrictions that had been found unconstitutional under Roe just six years earlier. Casey was the first abortion case to reach the court after the appointment of Justice Clarence Thomas, and court watchers on both sides of the issue widely believed that with Thomas, there were five votes willing to overturn Roe.
In Rehnquist’s draft opinion, the court adopted a new legal standard that would have permitted states to pass any law, including bans on abortion, so long as the laws are “rational.” The opinion then found that any law created with the purpose of protecting fetal life at any stage of pregnancy would meet that standard. In the draft, the court granted states the full power to return the law to the days before Roe, where states criminalized abortion and women, particularly those without resources, were forced to seek illegal and too often, back-alley, abortions.
The chief justice was smart, crafting an opinion that never said the magic words that Roe is no longer the law. He didn’t need to, because once states are given the green light to pass any restriction so long as it “protects fetal life,” women no longer have the ability to control their pregnancies and make childbearing decisions free of the brutal hand of government. And doctors, nurses, and other medical personnel can be made criminals for offering women the health care they need.
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Fortunately, Justice Anthony Kennedy switched his vote at the last minute and the court issued what we now know as Planned Parenthood v. Casey.
The decision enabled states to place greater restrictions on the right to choose abortion but upheld the hallmark of Roe — that states couldn’t criminalize the procedure, and that legal abortion remained permissible.
Pro-choice advocates gathered outside the Supreme Court on June 26, 1992, to await the court’s decision on Pennsylvania’s abortion restrictions. I’d like to believe it was my great oral argument that changed Justice Kennedy, but I don’t think so. I think what changed Justice Kennedy was a concern for the institutional integrity of the court, and the public outcry over losing a fundamental right for the first time in history. I think it concerned him that the court would be perceived as a political body based on the president who appointed the justice rather than the rule of law.
I have much less confidence that any of the conservatives now on the court nor any new appointments – by a president who openly flouts the rule of law and who repeatedly promised to appoint a justice who would overrule Roe – will have the courage to act as Justice Kennedy did.
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During the decade after Casey, the civil war over abortion ebbed. Unfortunately, since 2010, when anti-choice Republicans regained control of more states, hundreds of restrictions on abortion have been enacted, making abortion difficult to obtain in many states, particularly if a woman is young or poor or lives far from an urban area. With another anti-choice justice on the high court, we can expect an avalanche of new laws, from bans on certain methods of abortion to onerous restrictions on clinics.
Numerous legal challenges to these laws are already pending in the federal courts and could quickly make their way to the high court for review. I fear that this time around, there is no one like Justice Kennedy, prepared to uphold a precedent that has been repeatedly reaffirmed by the court and become settled law.
So what will that mean? Abortion again will be a matter determined state by state. The day that Justice Kennedy submitted his resignation, CNN legal analyst Jeffrey Toobin predicted that within 18 months of the confirmation of a Trump nominee, abortion will be illegal in 20 states and Pennsylvania could be one of them.
Unless we have the votes to stop them, the Pennsylvania legislature will be able to criminalize or further restrict abortion, and given its current composition, it is likely to do so. Gov. Wolf, if reelected, can and will veto such legislation, but we’d be far better off if both the House and Senate never passed such bad laws in the first place.
If you are among the overwhelming majority of Americans who support a woman’s right to make childbearing decisions, you need to vote only for pro-choice legislators in Harrisburg in November and return the Pennsylvania Senate and House to Democratic control. Women’s lives and health depend on it.
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Kathryn Kolbert, a public interest attorney, argued Planned Parenthood v. Casey in the U.S. Supreme Court on behalf of Planned Parenthood of Southeastern PA. and other Pennsylvania abortion providers.