“I want to live to see the day that we put the sanctity of life back at the center of American law, and we send Roe v. Wade to the ash heap of history, where it belongs.”
— Mike Pence, 2016
Brett Kavanaugh’s nomination may have sparked an unexpected clash over sexual assault and the #MeToo movement, but the hope and fear underlying his confirmation have always been about abortion. And now that he’s been confirmed, advocacy groups invested in the abortion wars have their sights set on potential post-Kavanaugh U.S. Supreme Court cases and strategies to win them. Medium called insiders on both sides to get a sense of how it could all play out.
Topline: Kavanaugh could, in short order, rule on 13 abortion cases, each of which hovers within reach of the Supreme Court and “provides an opportunity to overrule or severely weaken a woman’s constitutional right to access abortion,” according to a Planned Parenthood memo from September.
The cases in the Supreme Court pipeline can be divided into three buckets, according to Jenny Ma and Hillary Schneller, staff attorneys at the Center for Reproductive Rights (CRR), which plays a leading role in litigation and internal policy work on behalf of reproductive rights.
The first bucket involves “pre-viability” bans, laws that restrict abortions before a fetus can survive outside the womb. (Most medical professionals consider viability to be around 24 weeks, but it varies with each distinct pregnancy.)
The second involves what are known as Targeted Regulation of Abortion Providers (TRAP) laws, which attempt to drive clinics out of business by regulating everything from the width of an abortion clinic’s corridor or hallway to hospital admitting privileges. Abortion opponents contend such regulations protect women’s health, though a study published in the American Journal of Public Health in 2018 found that they “go beyond necessary and accepted standards of practice and fail to provide countervailing benefits.”
The third involves bans on specific types of abortion procedures.
Kavanaugh could, in short order, rule on 13 abortion cases, each of which hovers within reach of the Supreme Court.
Gretchen Borchelt, vice president for reproductive rights and health for the National Women’s Law Center (NWLC) in Washington, D.C., predicts the first abortion cases to reach the Kavanaugh court will involve laws banning dilation and evacuation (D&E), a common procedure used for second-trimester abortions and miscarriages.
Two federal appeals court judges earlier this summer struck down a D&E ban in Alabama over their own distaste for abortion. Judge Joel F. Dubina said he was following the Supreme Court’s lead even though he disagreed: “The problem I have, as noted in the Chief Judge’s opinion, is that I am not on the Supreme Court, and as a federal appellate judge, I am bound by my oath to follow all of the Supreme Court’s precedents, whether I agree with them or not.”
These loaded opinions, though ostensibly upholding the precedent set by Roe v. Wade, not too subtly suggest that the state of Alabama appeal the decision so that the new Supreme Court has an opportunity to reconsider that precedent.
Roe could also face direct challenges at the Supreme Court from Mississippi’s 15-week abortion ban, which has been temporarily blocked by lower courts, and Louisiana’s 15-week ban, which would only take effect if the courts uphold Mississippi’s ban. Steven Aden, chief legal officer and general counsel for Americans United for Life (AUL), predicted a 20-week case “sooner or later,” too. Seventeen states ban abortion at 20 weeks post-fertilization or 22 weeks into the pregnancy, according to the Guttmacher Institute, a research organization that supports abortion rights. President Donald Trump has repeatedly promised to sign a federal 20-week abortion ban into law if and when Congress can pass a final version.
NWLC’s Borchelt doesn’t anticipate a head-on collision with Roe at the outset of the Supreme Court’s new term, which began Oct. 1. “The chip-away ones are just further along,” she said of upcoming cases. But she cautioned that Kavanaugh and fellow conservative justices could still use them to revisit Roe and perhaps even gut it while pretending otherwise.