Justice Anthony Kennedy's Retirement Could Reshape U.S. Abortion Debate

Jun 29, 2018
Originally published on June 29, 2018 6:57 pm
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MARY LOUISE KELLY, HOST:

When President Trump's nominee to fill the seat of retiring Supreme Court Justice Anthony Kennedy goes before the Senate, one of the biggest issues is likely to be abortion rights. Here is candidate Donald Trump speaking to Fox News host Chris Wallace in 2016.

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CHRIS WALLACE: Do you want to see the court overturn Roe v. Wade?

PRESIDENT DONALD TRUMP: Well, if we put another two or perhaps three justices on, that's really what's going to be - that will happen. And that'll happen automatically in my opinion because I am putting pro-life justices on the court.

KELLY: That would not happen automatically. Any case challenging the 1973 decision legalizing abortion would have to wind its way through the courts. NPR's Sarah McCammon has more.

SARAH MCCAMMON, BYLINE: If there's one thing abortion rights opponents and supporters agree on, it's that this is not a drill.

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UNIDENTIFIED PERSON: We are the closest we've ever been to overturning Roe v. Wade. Call your senator and demand they honor President Trump's nomination.

MCCAMMON: That video was released online by the group Students for Life just after Justice Kennedy announced his retirement. Abortion rights supporters are also readying for a fight.

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ILYSE HOGUE: Hi, everyone. I'm Ilyse Hogue. I am the president of NARAL Pro-Choice America.

MCCAMMON: Outside the Supreme Court this week, Ilyse Hogue rallied abortion rights activists.

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HOGUE: This is the moment that we were made for.

MCCAMMON: Abortion opponents are cheering the vacancy as an opportunity to restrict the procedure. But abortion rights advocates like Nancy Northup of the Center for Reproductive Rights are expressing grave concern.

NANCY NORTHUP: Well, Justice Kennedy's retirement is devastating news.

MCCAMMON: While Kennedy has been the swing vote siding with the liberal position on some issues and the conservative one on others, he supported abortion rights in several key cases. Trump's nominee would likely tip the balance of the court against abortion rights, setting up a wrenching confirmation battle in the Senate where Republicans hold a narrow majority. Senators on both sides of the aisle will be hearing from advocates on both sides of the issue, particularly the handful of vulnerable Democrats from red states and Republicans who've supported abortion rights in the past.

MARJORIE DANNENFELSER: It's going to be epic. It will be cast as a pretty pivotal vote on the court on this issue and many, many others.

MCCAMMON: Marjorie Dannenfelser is president of the Susan B. Anthony List, which works to elect candidates who oppose abortion rights.

DANNENFELSER: Yeah, we've been preparing for this fight for a very long time.

MCCAMMON: If Trump is successful in pushing through his nominee, the newly configured court may be asked to consider restrictive abortion laws recently passed by several states. Northup with the Center for Reproductive Rights says some ban abortion early in the second trimester or even in the first.

NORTHRUP: So I think it's the early cutoff dates for abortion that you're going to be seeing going up to the court that could challenge Roe v. Wade because Roe v. Wade and its - cases that have followed have made clear that, you know, before the time of fetal viability, it's for the woman and her doctor to make the decision.

MCCAMMON: In Iowa, a law passed this year that prohibits the procedure after a fetal heartbeat can be detected is being challenged in court. Anti-abortion activists have said they backed the bill with the explicit goal of forcing the Supreme Court to reconsider Roe. That's alarming to abortion rights supporters. But abortion opponents like Dannenfelser downplay the idea that an end to Roe would mean an end to all abortion in the U.S.

DANNENFELSER: That simply is not where we will be. We're in a democracy, and the consensus is what will be established in every state.

MCCAMMON: But abortion rights advocates note that more than a dozen states already have laws on the books designed to severely restrict or totally ban abortion if Roe v. Wade is overturned, which would mean women seeking the procedure in much of the country could have few options. Sarah McCammon, NPR News, Washington. Transcript provided by NPR, Copyright NPR.