How A Supreme Court Vacancy Could Spell The End Of Legal Abortion

A legal scholar on the fate of Roe v. Wade after the death of liberal giant Ruth Bader Ginsburg.
Illustration: Damon Dahlen/HuffPost; Photos: Getty Images

For almost 30 years on the Supreme Court, Ruth Bader Ginsburg was a vocal defender of abortion rights, framing the question of reproductive choice as one of gender equality. “This is something central to a woman’s life, to her dignity,” she said at her 1993 confirmation hearing. “When government controls that decision for her, she’s being treated as less than a fully adult human responsible for her own choices.”

That position guided her voting record up to her last reproductive rights case, which she participated in from her hospital bed in May. She used her voice, while weak, to castigate the Trump administration for undermining comprehensive birth control coverage.

Ginsburg’s reliable liberal vote on abortion rights is now gone. In her absence, Roe v. Wade, the landmark Supreme Court decision that established a constitutional right to abortion, is expected to be contested. The future of legal abortion in the U.S. is facing its greatest threat in decades.

HuffPost spoke with Mary Ziegler, a professor at Florida State University and author of “Abortion and the Law in America: Roe v. Wade to the Present,” about the looming confirmation battle to replace Ginsburg and what might come next.

What do you expect to happen to abortion rights if a new conservative justice is confirmed?

It depends who the nominee is. The two front-runners at the moment are Barbara Lagoa of the 11th circuit and Amy Coney Barrett. Lagoa doesn’t have as long of a record on abortion, which may make her the less likely choice. She could alienate social conservatives who share Sen. Josh Hawley’s angst. [Note: The Missouri lawmaker said in June that he would only vote to confirm Supreme Court nominees who say Roe v. Wade was wrongly decided.] Barrett, by contrast, would be expected to be a vote against Roe. She has been more openly pro-life than most current members of the court, including the conservative members, so we have reason to think that she’s skeptical of Roe.

The question is, what would adding someone like her mean in terms of the balance of the court? The most immediate effect would be to change who the swing vote is on abortion. At the moment, the swing vote is Chief Justice John Roberts. Roberts has been more likely to vote with the liberals than any of his conservative colleagues. As we’ve seen, while he is willing to rewrite and even undo precedent when it comes to abortion, he also has concerns about going too far, too soon. [Note: Roberts recently voted with the liberals in June Medical Services v. Russo to strike down an anti-abortion law in Louisiana, but left open the door to upholding future restrictions.]

Roberts has almost tied himself to the mast about this idea of precedent. It doesn’t mean he won’t overturn Roe or Casey. [Note: Planned Parenthood v. Casey established that states can regulate abortion as long as they don’t impose an “undue burden” on those seeking the procedure.] But for him to explain why Casey should go after writing an opinion about his commitment to precedent would be hard.

The most likely swing vote on abortion would probably become Justice Brett Kavanaugh. Of the conservative dissenters in June Medical, Kavanaugh was the only one who was not prepared to say Louisiana’s law was fine. He wanted to send the case back to the lower court for more facts. He seems to share Roberts’ concerns about the court’s reputation. Having Kavanaugh as the swing would likely mean that the court would go further, faster in upholding abortion restrictions and moving toward the overruling of Roe, but maybe not that fast.

How important was Ruth Bader Ginsburg to the issue of abortion rights?

Ginsburg’s influence was significant because she helped articulate the idea that abortion was not just a question of autonomy and privacy and bodily integrity, but also of equality for women. She was the most concerned about the foundations that Roe laid for abortion rights, and the most invested in creating a better foundation.

While she was certainly the most powerful voice [on abortion rights], she was maybe not the most influential voice, because a lot of our actual abortion jurisprudence was a function of compromise reached by the justices in the middle, like Sandra Day O’Connor and Anthony Kennedy and David Souter.

In her absence, who will step into the role of defending abortion rights?

Justice Stephen Breyer has written a lot of important opinions on abortion in recent years, but his abortion jurisprudence is very facts-driven. He digs into the sometimes spurious claims that legislators make in justifying abortion restrictions, and it’s his specialty to write about what’s wrong with those claims. So while that’s a version of writing about equality, it’s not really high-level constitutional theory. Sonia Sotomayor is a possibility, she’s done that in other areas of the law. Elena Kagan is probably the one of the savviest strategists on the court, not just among the liberals. And so you would expect her if you’re talking about abortion and equality to be framing it in a way that’s designed to consolidate some kind of majority. In that way, that’s Ginsburg’s legacy. Ginsburg was not, even as an attorney, just interested in being right but also interested in getting the votes. She was quite savvy about that and Kagan is too.

Can you describe the anti-abortion movement’s legal strategy to overturn Roe, and do you think their approach will change now?

There have been two parallel strategies. One is to push more absolute restrictions in the hope that the court will move quickly — we see this in the campaign for heartbeat bills. [Note: So-called “heartbeat bills” outlaw abortion at around six weeks of pregnancy, before many women even know they are expecting.]

The more sophisticated players are still moving more cautiously. They favor cases that will limit abortion access dramatically, but more incrementally than an outright ban. This includes laws banning dilation and evacuation, the most common procedure after the first trimester, limiting access to medication abortion, banning abortion at 15 or 20 weeks, and prohibiting abortion for certain reasons, such as in cases of race, sex or disability.

Moving incrementally will still make sense in the near term. But these incremental restrictions could have a major impact, both symbolically and in practical terms. Many could give states the power to introduce some kind of ban before viability for the first time since Roe. Others could put the most common or safe abortion technique for a particular group of patients out of reach.

I don’t think this is coming soon, but if enough conservative justices were added to the court, we might get to the point where anti-abortion lawyers seriously think about arguing that there’s a right to life. Not just that there is no right to abortion, but that the Constitution protects fetal life. Then you’d be talking about abortion being illegal in New York as well as Alabama.

How worried are you personally about Roe getting overturned at this point?

I mean, certainly more than I was. It’s worth noting that there are other members of the liberal wing of the court who are older. If you had two more conservative nominees, which is a possibility depending on the results of the 2020 election, that would make the overruling of Roe even more likely.

For the most part, Justice Clarence Thomas has been the lone clear voice for the overturning of Roe. If you add one more conservative justice, that might not be true. Neil Gorsuch has hinted that he thinks that way, but he usually hasn’t been as willing to join Thomas, or at least be as clear about what he thinks. If you had enough conservative justices added to the court, and one more very conservative justice on abortion, it would certainly push things in this direction.

You might begin to see the consolidation of a clear demand to overturn Roe. That’s important because then you would have more pressure from the right on the conservative justices in the middle, like Kavanaugh or Roberts. But long story short, even one more conservative puts Roe in much more serious jeopardy than it is now.

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