Departure of Kennedy, ‘Firewall for Abortion Rights,’ Imperils Roe v. Wade

WASHINGTON — Justice Anthony Kennedy’s decision to retire, giving President Donald Trump another opportunity to carry out his vow to select Supreme Court nominees who would “automatically” overturn Roe v. Wade, threatens to imperil the 1973 decision that established the constitutional right to have an abortion.

The move also promised to reshuffle the landscape for reproductive rights in the United States, setting the stage for a bitter political and legal struggle that could affect generations of women.

For decades, Kennedy has been seen by supporters and opponents of abortion rights as a crucial swing vote, the deciding force on a profoundly polarized court who weighed in at key moments to preserve the core of Roe.

“Kennedy was the firewall for abortion rights for as long as he was there,” said Mary Ziegler, a professor at the Florida State University College of Law who has written extensively on Roe and its aftermath. “He has been the defining force in American abortion law since the ‘90s, so his absence means that Roe will be much more in peril.”

“A decision overturning Roe is way more likely,” Ziegler said. “A series of decisions hollowing out Roe without formally announcing that’s what’s going on is pretty likely, too.”

Activist groups on both sides of the issue agreed on one thing: that Kennedy’s impending departure and Trump’s likely selection to succeed him would redraw the well-established legal battle lines over abortion rights, making it more probable that the court would move to uphold new restrictions and, potentially, abandon Roe altogether.

Progressive organizations that support abortion rights swiftly slid into panic mode, publicly wringing their hands about the future of Roe, while conservative groups that oppose abortion rights exulted in the prospect of rolling it back.

Ilyse Hogue, the president of Naral Pro-Choice America, said that with Kennedy’s retirement announcement, “a woman’s constitutional right to access legal abortion is in dire, immediate danger.”

Marjorie Dannenfelser, the president of the Susan B. Anthony List, which opposes abortion rights, said that Kennedy’s decision to step down “marks a pivotal moment for the fight to ensure every unborn child is welcomed and protected under the law.”

Tony Perkins, who leads the Family Research Council, said religious conservatives who had put aside their misgivings about Trump and backed him because of his promise to name a “pro-life” justice had been vindicated. “They took a risk, and now the reward,” Perkins said. “You’ll have a solid five votes for life.”

Kennedy’s importance in the legal wrangling over abortion rights complicated the politics of the coming confirmation battle for his successor, shining a spotlight on Republican senators who support abortion rights: Susan Collins of Maine and Lisa Murkowski of Alaska. If all 49 Democrats opposed Trump’s nominee, both women’s votes would be needed to push the president’s choice through the Senate, giving them outsize influence over the process. They could condition their votes on a pledge from Trump’s nominee to uphold Roe, an issue on which prospective Supreme Court justices are often grilled and rarely weigh in definitively.

Both have backed judges who oppose abortion rights in the past. Collins issued a noncommital statement, saying: “I view Roe v. Wade as being settled law. It’s clearly precedent, and I always look for judges who respect precedent.”

Murkowski said abortion rights would be one element of her decision about whether to back Trump’s nominee.

“Roe is one of those factors that I will weigh, just as I weighed it with the other nominations that came before us,” she said. “Is it the only factor that I weigh? No.”

Kennedy, a Republican appointee with a moderately conservative bent, had a mixed record on abortion rights, rarely voting to strike down laws restricting them; he wrote a 2007 majority opinion upholding the federal Partial-Birth Abortion Ban Act. But in crucial cases, he joined the court’s liberals in reaffirming the principles undergirding Roe, effectively serving as a bulwark for preserving it.

In 1992, in Planned Parenthood v. Casey, he joined Justices Sandra Day O’Connor and David Souter in a joint opinion that upheld Roe, saying that states could not enact laws that placed an “undue burden” on women’s access to an abortion. In 2016, he voted with the court’s liberal justices to strike down a Texas regulation that made it more difficult for doctors and clinics to provide abortions.

“Kennedy was not a reliable vote for abortion rights — he only voted to strike down a couple of abortion restriction laws — but he was reliably in favor of treating abortion differently, as a protected right under the Constitution,” said David S. Cohen, a law professor at Drexel University.

“A newly conservative Supreme Court with a replacement for Kennedy could say in any one of a number of cases that are pending right now that the standard has changed, we are now evaluating these laws just like any other, with a rational basis test, and it would mean that states could go ahead and regulate abortion however they want,” Cohen said.

More than anything, said Maya Manian, a professor at the University of San Francisco School of Law, Kennedy was seen as a “holdout” against a wholesale evisceration of Roe, and a rare conservative voice on the court for narrowly tailoring restrictions to reproductive health access, including access to contraception.

“With Kennedy gone, we could see the broad scope of reproductive access through various means sharply scaled back,” Manian said. “A lot of civil rights are now at grave risk.”

Beyond individual cases, Kennedy’s absence will fundamentally redefine the calculus of abortion cases for lawyers on both sides, Ziegler said. In the past, they would tailor their arguments to the sole justice whom they viewed as a deciding factor in such cases.

“As long as Kennedy was the swing vote, there wasn’t even really much of a point in asking the court to overturn Roe; now, we’re kind of in a brave new world,” she said. “The question now is: ‘Who are you talking to? Who’s the swing vote? Who do you need to win over?’ It’s a complete game-changer.”