How Justice Anthony Kennedy's Retirement From the Supreme Court Could Erode Women's Rights
Presidents come and go, but Supreme Court justices last a lifetime—and their rulings can affect women for generations to come.
The privilege of nominating a high court judge now falls to President Donald Trump for the second time with the coming retirement of Justice Anthony Kennedy.
Trump has vowed to put conservative judges on the bench, and he kept that promise when he chose Neil Gorsuch to replace the late Antonin Scalia last year. In choosing Kennedy’s replacement, Trump could shift the court further to the right, changing the landscape on issues affecting American women—including abortion rights—and could fire up both sides of the aisle in an already tumultuous election year.
Here’s a look at what’s ahead for the court—and the the country.
What's at stake?
Trump's next nominee may matter even more than his last. Replacing Scalia with Gorsuch didn't change the court's partisan balance; it was a case of one conservative justice succeeding another.
That's about to change, according to Melissa Murray, the Alexander F. and May T. Morrison Professor of Law at the University of California, Berkeley.
“Over the last 20 years, Justice Kennedy emerged as the sort of prototypical swing justice on the court, the person whose vote was pivotal in securing and upholding such policies as affirmative action," Murray, who clerked for Justice Sonia Sotomayor before her SCOTUS appointment, told Glamour. "He often was on the progressive side [of issues], though not all. And he of course was famously the architect [of] basically the whole process of getting to same-sex marriage... His retirement is actually a huge void, and it sort of disrupts the equilibrium of the court."
Murray said a rightward SCOTUS lurch could deeply influence women's lives on issues ranging from abortion rights to voting protections to unionized labor.
What will happen with abortion law if a hard-right conservative gets the seat?
A huge amount of the attention surrounding Trump’s Supreme Court pick centers on how it might affect abortion—and more specifically the landmark 1973 case of Roe v. Wade, which effectively made abortion legal in the U.S. The departing Kennedy was the swing vote, siding with the liberals, in later cases seen as a direct threat to Roe.
A number of states already have their own legal restrictions on the termination of pregnancies. Abortion-rights proponents fear that cases now making their way through the lower courts could ultimately lead to the overturning of Roe and the end of legal abortions in America—something deeply conservative Vice President Mike Pence has openly said will happen this lifetime.
Pro-choice and anti-abortion advocates are mobilizing their bases ahead of Trump's pick.
"The idea of Trump having his choice to fill another vacancy is terrifying for not only abortion rights, but for our ability to live free from discrimination in this country," said Dawn Laguens, executive vice president of Planned Parenthood Federation of America in a press release issued in response to Kennedy's retirement announcement. The group said its "11 million supporters call on the Senate to reject any nominee who would strip people's individual rights and freedoms."
“The most important commitment that President Trump has made to the pro-life movement has been his promise to nominate only pro-life judges to the Supreme Court, a commitment he honored by swiftly nominating Judge Neil Gorsuch,” said Marjorie Dannenfelser, president of the pro-life Susan B. Anthony List, in a press release issued by the group. “President Trump now has another crucial opportunity to restore respect for life and the Constitution. We trust him to follow through on his promise.”
So what does it mean if Roe v. Wade is overturned?
If the case is actually overturned, the landscape of where and what women can choose to do with their own bodies could change drastically.
In four states (Illinois, Kentucky, Louisiana, South Dakota), there are so-called "trigger laws" so abortion would be automatically banned if Roe is overturned.
According to the Guttmacher Institute, only eight states currently have legislation protecting the right to an abortion. Though it would be safe to assume that blue states without such laws would work to enact them quickly.
Red states and rural areas would likely see access to legal abortions disappear locally, meaning there would be an added financial burden in trying to travel to a state where they are still legal. This would disproportionately affect lower income women. CNN's Jeffrey Toobin predicted that abortion would be illegal in 20 states within 18 months.
What does this mean for Trump's base?
As Amy L. Howe noted in a piece for SCOTUS blog, “Anti-abortion voters had played a key role in [Ronald] Reagan’s election, and Kennedy initially provided both the president who appointed him and those voters with reason to be optimistic.”
Trump's unfavorable ratings remain higher than his approvals in the runup to a midterm election that could make or break his party's control of Congress.
“Without a doubt, the court appointment is a huge boost for Trump and Republicans, who were facing serious headwinds going into midterms. They still are—SCOTUS will drive significant [Democratic] and female turnout,” CNN commentator S.E. Cupp told Glamour.
At the same time, warned the conservative Cupp, “Don’t underestimate how much it will also motivate conservatives and evangelicals. If they were contemplating staying home, they now have reason to get out and vote. SCOTUS is the only—and I mean only—thing around which the fractured right can rally."
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