Kavanaugh drama: High stakes in abortion debate
New York – Among those riveted by the drama of Brett Kavanaugh’s Supreme Court nomination are the rival sides in America’s abortion debate, each convinced that the nationwide right to abortion is at stake.
During his Senate confirmation hearing in early September, Kavanaugh deflected questions about whether he might favor overturning Roe v. Wade, the 1973 decision that established that right in all 50 states. However, anti-abortion activists and abortion-rights supporters – divided on so many matters – share a belief that Kavanaugh would be open to upholding state laws that would weaken Roe by further restricting abortion access.
Back in July, when Kavanaugh was nominated by President Donald Trump, anti-abortion leader Marjorie Dannenfelser of the Susan B. Anthony List called it “wonderful news for the pro-life movement.” This week, her group reaffirmed support for Kavanaugh’s confirmation even as he faces a hearing Thursday about Christine Blasey Ford’s allegation that he sexually assaulted her while they both were in high school.
Abortion-rights groups have been campaigning vigorously against Kavanaugh since July; their efforts have intensified since the assault allegation surfaced.
“It was already clear that, if confirmed, Brett Kavanaugh would use his power to control women’s bodies, including gutting our constitutional right to safe, legal abortion,” a Planned Parenthood statement asserted. “The allegations of sexual assault further disqualify him from a seat on the Supreme Court.”
If confirmed, Kavanaugh would replace retired Justice Anthony Kennedy, who had been part of a 5-4 Supreme Court majority in favor of fundamental abortion rights. Kavanaugh would likely tip the balance the other way, say activists on both sides of the debate.
Were Kavanaugh to withdraw his nomination – or lose a confirmation vote – Trump could swiftly nominate another conservative candidate, such as federal judge Amy Coney Barrett. A former Notre Dame law professor, she was among the four finalists to fill the Kennedy vacancy and is widely viewed as a staunch abortion opponent.
However, anti-abortion activists don’t want to lose the fight for Kavanaugh, in part because they’d like a conservative filling the vacant seat as the Supreme Court’s new term starts next week. They also say such a loss would open the door to unprovable allegations against future nominees.
To avoid what she called “a slippery slope,” Kristan Hawkins, president of the anti-abortion group Students for Life of America, said she wants Kavanaugh confirmed now, and predicted Coney Barrett would fill a future vacancy on the high court.
Professor Michael New, an abortion opponent who teaches at Catholic University in Washington, D.C., said derailing Kavanaugh’s nomination, without firm proof of misconduct, “might discourage pro-lifers from seeking judicial appointments or other governmental appointments in the future.”
Abortion-rights groups pressing for Kavanaugh to be rejected say they’re not deterred by the possibility that Trump would then nominate someone like Coney Barrett.
“The vast majority of Americans do not want to see Roe v. Wade overturned,” said Dana Singiser, Planned Parenthood’s vice president for public policy. “As long as President Trump nominates someone who will fulfill his promise to overturn it, his nominee will be out of line with the American people.”
Ilyse Hogue, president of NARAL Pro-Choice America, said abortion-rights supporters had helped fuel extensive opposition to Kavanaugh many weeks before the sexual assault allegation was disclosed.
“Women are mobilized as never before,” she said. “It all adds up to a formidable force that Republicans are going to face with Kavanaugh and whoever comes next.”
Complicating any short-term predictions is the midterm election on Nov. 6. If Kavanaugh withdraws or is rejected, Trump might promptly nominate a new candidate, but completing the confirmation process before Nov. 6 might be difficult.
If the Republicans hold on to the Senate in the election, they’d have leeway in choosing how to proceed. But if the Democrats take the Senate, GOP leaders would face a more difficult choice of whether to attempt to push through a conservative nominee during a lame duck session. The GOP’s anti-abortion base would likely urge them to do so, given the hurdles that a nominee like Coney Barrett might face in winning confirmation from a Democratic-controlled Senate that would take over in January.
At stake in all of this drama is the fate of state laws seeking to ban abortion or restrict access to it. A repeal of Roe v. Wade would not ban abortion nationwide, but it would allow individual states to enact bans or other tough restrictions.
Abortion-rights activists say a reconfigured Supreme Court could sharply reduce abortion access even without repealing Roe, by upholding strict state laws.
“Without overturning Roe directly, the court could make abortion as good as illegal for millions of women,” said Jennifer Dalven, director of the American Civil Liberties Union’s Reproductive Freedom Project.
She and her allies are tracking 13 pending cases in the federal courts concerning anti-abortion state laws. Among them are measures that ban specific abortion procedures, require abortion providers to have admitting privileges at a local hospital and require abortion clinics to have expensive hospital-grade facilities in order to be licensed.
If a justice such as Kavanaugh or Coney Barrett were confirmed, Dalven predicted a new batch of state laws would be enacted, with more sweeping restrictions.
“I think there will be states racing to try to become the first to ban abortion,” she said.