Anthony Kennedy’s retirement puts abortion rights at risk

Anthony Kennedy, the longest-serving member of the Supreme Court, is retiring.

Within minutes of his announcement, CNN senior legal analyst Jeffrey Toobin tweeted this: “Anthony Kennedy is retiring. Abortion will be illegal in twenty states in 18 months. #SCOTUS.”

Nothing is guaranteed, of course, but Kennedy has, since at least 2005, been the swing vote on many of the Court’s most ideologically charged decisions — including preserving Roe v. Wade.

And Kennedy’s replacement will be much likelier to join a decision overturning Roe v. Wade, giving states the ability to ban abortions as early as the first trimester.

This may take years after the replacement’s confirmation; a state would need to pass a law clearly incompatible with the Court’s existing approach to abortion rights and wait for the challenge to reach the Supreme Court before the new justice would have a chance to join a ruling. The anti-abortion movement might choose a more cautious strategy, instead chipping away at Roe with measures that fall short of outright bans.

But with Kennedy gone, the votes for an outright reversal of Roe would probably be there.

UC Berkeley law dean and constitutional law expert Erwin Chemerinsky wrote in 2016, “There almost certainly will be a majority to overrule Roe v. Wade and allow states to prohibit abortions” once Kennedy (or one of the liberals) leaves the court.

It’s certainly possible that Chief Justice John Roberts will decline to join an anti-Roe majority due to precedent and a desire to avoid a massive public backlash, but there are reasons to think it unlikely. Roberts has on four occasions joined decisions overturning past Supreme Court precedent: one was a case on the right to counsel and how it can and cannot be waived; another was Citizens United, which sparked massive national outrage; and the third and fourth came just this year with Janus v. AFSCME, in which the Court overturned a 41-year-old precedent and struck a blow against public-sector-unions, and South Dakota v. Wayfair, which overturned decades-old precedents on state collection of sales taxes.

Roberts voted to overturn precedent anyway, knowing a backlash was inevitable. Indeed, in his concurrence to Citizens United, Roberts suggested that “hotly contested” issues might provide for exceptions from the principle of stare decisis and respect for precedent. Also possible is that instead of decapitating Roe in one blow, Roberts will instead “vote to kill it with 1,000 cuts rather than overturn it outright,” as UC Irvine Law’s Richard Hasen puts it.

Perhaps we’ll see another case like Whole Women’s Health (a 2016 decision where Kennedy joined the Court’s liberals in striking down Texas regulations meant to disrupt abortion provision), but this time the court sides with the state’s restrictions. Perhaps another state takes its 20-week ban to the Supreme Court, which then relaxes Roe and rules that you can bar abortions that early in a pregnancy. Bit by bit, the Court enables states to get more creative and bold in their restrictions, until one day it finally gives up the ghost and announces Roe is dead.

Abortion in a divided America

In the aftermath of a reversal, the current gap in abortion services between red and blue states will become even more severe. The pro-abortion rights Guttmacher Institute classifies 29 states as “hostile or extremely hostile” to abortion rights, of which all but two voted for Trump in 2016 (the exceptions are Rhode Island and Virginia). It rated only 12 as supportive, with Montana the only supportive red state.

Guttmacher further notes that four states (Louisiana, Mississippi, North Dakota, and South Dakota) have passed laws to automatically ban abortion should Roe be overturned, 10 have retained pre-Roe abortion bans, and eight have laws that “express their intent to restrict the right to legal abortion to the maximum extent permitted by the U.S. Supreme Court in the absence of Roe”; in total, 18 states fall into one or more of those categories. Some states on the list may be surprising; Massachusetts, Michigan, New Mexico, and Wisconsin all retain their pre-Roe abortion bans, though in some cases those bans may violate the state constitution.

On the other side, only eight states (California, Connecticut, Delaware, Hawaii, Maine, Maryland, Nevada, and Washington) have passed measures defending abortion rights in the absence of Roe.

That said, there are already substantial gaps between states in access to abortion. Restrictive laws already on the books appear to significantly lower the abortion rate in their states, suggesting they’re already reducing access. A study by Guttmacher researchers found that while the average American woman aged 15-44 lives less than 11 miles from the nearest clinic, that number varies dramatically from state to state and county to county. In Mississippi, the average woman lives 68.8 miles from the nearest clinic. In North Dakota, the number is 151.6. A lot of the variation is just a function of how rural the state is, but the political environment appears to be a significant factor as well.

Overturning Roe would harden these gaps between states, and also open up a vast new market for self-induced abortions. That market already exists. Seth Stephens-Davidowitz, an economist and writer who has conducted research on demand for abortion using Google search data, once told Vox, “I’m pretty convinced that the United States has a self-induced abortion crisis right now based on the volume of search inquiries. I was blown away by how frequently people are searching for ways to do abortions themselves now. These searches are concentrated in parts of the country where it’s hard to get an abortion and they rose substantially when it became harder to get an abortion.”

But while “self-induced” conjures up images of wirehangers and back alleys, the form this will most likely take is greater usage of abortion pills. About a third of all abortions, and a higher share of early-term abortions, are medication abortions now. It’s possible that’s what some of the searches for “self-induced abortion” were about, anyway.

As the journalist Irin Carmon has noted, the drug misoprostol, which is usually paired with mifepristone but is still somewhat effective on its own at terminating early-term pregnancies, is available over the counter in Mexican pharmacies. It’s medically safe enough that some doctors believe it, and mifepristone, should be available over the counter here too. How much do you want to bet that the US market for misoprostol, or misoprostol plus mifepristone — also known as RU-486 — will explode in the aftermath of Roe falling?

So that’s what’s likely in store for us. An America after Anthony Kennedy looks significantly different from America before — and the anti-abortion movement could notch its greatest victories in a half-century.

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