Opinion

What does Anthony Kennedy's retirement mean for Roe v. Wade?

The days of the Supreme Court protecting the reproductive freedom of American women are about to end

Anthony Kennedy's retirement from the Supreme Court will give the Republican Party a more right-wing five-person majority, with four of those five justices nominated by presidents who lost the popular vote. This is, to say the least, a distressing moment for American democracy. And while there will be many bad consequences of a Trumpified Supreme Court, one of the most stark will be the dismantling of a woman's right to choose.

Roe v. Wade, the landmark 1973 ruling that legalized abortion in America, has already been seriously undermined. The 1992 decision in Planned Parenthood v. Casey allowed states broad leeway to regulate abortion, and the procedure is becoming increasingly inaccessible. But still, some protections for abortion remained. Casey did explicitly re-affirm Roe, and in the 2016 Whole Woman's Health v. Hellerstedt case, Kennedy used his swing vote to side with the majority, voting to strike down Texas regulations that the court said unduly burdened women seeking abortions.

With Kennedy's retirement, these protections are almost certainly about to vanish.

The 2016 case, had it gone the other direction, would have provided a roadmap for states to make it nearly impossible for abortion clinics to operate. The three dissenters from that vote remain on the court. Neil Gorsuch, competing with Clarence Thomas for the title of the court's most radical conservative, will surely be the fourth. And any Trump nominee will agree with this contemporary Republican consensus.

So, to put it bluntly, Roe v. Wade is dead. The days of the Supreme Court protecting the reproductive freedom of American women are about to end. The only question is how. It won't necessarily happen with a quick decision announcing explicitly that Roe is overruled. It will be chipped away at, slowly but surely, state by state.

In 1988, Chief Justice William Rehnquist attempted to replace — not overrule — Roe with a new standard that would permit virtually all abortion regulation. The other justices were not fooled by the gambit. "I am not in favor of overruling Roe v. Wade," wrote Justice John Paul Stevens in a cutting memo, "but if the deed is to be done I would rather see the court give the case a decent burial instead of tossing it out the window of a fast-moving caboose." And, ultimately, Rehnquist lacked the votes to accomplish his goal, as the Republican swing votes Justices Kennedy and Sandra Day O'Connor ultimately voted to preserve Roe in modified form.

But Kennedy and O'Connor are gone, and Chief Justice John Roberts, who is fond of this kind of hollowing out of precedents, may well pursue a similar strategy to Rehnquist's. Rather than overrule Roe right away, the court can simply take cases that uphold tight regulations but stop short of a ban, while inviting states to keep pushing the envelope. Eventually, a law will force the court to overrule Roe or strike down the law, and it will almost certainly do the former. But it may not happen before the next presidential election.

What will this mean? First, there will be an explosion of TRAP laws, or regulations aimed at making it harder and harder for abortion clinics to operate. The Supreme Court recently refused a challenge to an Arkansas law banning medication abortions, and these laws are clearly not going to be struck down now, so many other states will follow Arkansas' lead. Even before Roe is technically overruled, there may be multiple states with no abortion clinics in operation.

Many states will probably also continue to regulate the time frame during which a woman can obtain an abortion. Iowa, for example, recently passed a law making abortions illegal after six weeks of pregnancy. The court might not start by taking a challenge about a law that draconian — which would force a direct confrontation with Roe — but it probably will signal to states that they can ban a larger and larger group of pre-viability abortions and pass an array of regulations that make it more difficult for women to obtain abortions at any time in the pregnancy.

The consequences will be bad, and in some cases deadly. Many women will lack access to safe abortions, and poor women and women in rural areas will be hit the hardest. This, ultimately, will be a major part of Anthony Kennedy's legacy: the immolation of the reproductive freedom he once cast a crucial vote to protect.

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