Justice Anthony Kennedy’s retirement from the U.S. Supreme Court puts conservatives in striking distance of one of their most cherished goals: overturning the landmark Roe v. Wade abortion-rights ruling.
And supporters of a new Iowa law hope the ongoing legal fight over it will provide a reconstituted court with just the right case to decide.
The court’s swing vote for the past dozen years, Kennedy sided with his liberal colleagues on gay rights and sometimes on discrimination and the death penalty. His President Donald Trump-appointed successor could shift the court to the right on each issue.
But nowhere will Kennedy’s departure be more significant than on the politically explosive issue of abortion. Kennedy was a Roe supporter, and the remaining justices include four who either have backed abortion restrictions or in all likelihood would.
Abortion could be the central issue in a battle over the nominee in the Senate, where the GOP’s slim majority leaves little room for defections.
Trump vowed during the campaign to appoint “pro life” justices who would overturn Roe, which legalized abortion nationwide. His first appointee, Neil Gorsuch, hasn’t ruled on the issue directly but joined the majority this week to block a California law requiring pregnancy centers to tell patients how to get government-subsidized abortions.
Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas all have consistently voted to uphold abortion restrictions. Thomas has said he would overturn Roe.
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Republicans, who hold a 51-49 advantage in the Senate, could confirm Trump’s nominee without any Democrats. A potentially pivotal lawmaker, Republican Sen. Susan Collins of Maine, said she views Roe as “settled law.”
“It’s clearly precedent, and I always look for judges who respect precedent,” Collins said.
Another moderate Republican, Sen. Lisa Murkowski of Alaska, told reporters that Roe “is one of those factors that I will weigh, just as I weighed it with the other nominations that came before us.”
Democrats moved quickly to try to make Roe a dominant issue, both in the confirmation process and the struggle for control of Congress in the November elections.
“The Senate should reject, on a bipartisan basis, any justice who would overturn Roe v. Wade or undermine key health care protections,” said Senate Minority Leader Chuck Schumer of New York.
Iowa is among the states testing Roe. The state is defending a new law that would bar most abortions once a fetal heartbeat can be detected — typically, about six weeks into pregnancy.
Though the legal fight currently is centered on language in the state constitution, backers hope appeals eventually will land the case before the U.S. Supreme Court.
After Iowa’s Democratic attorney general refused to represent the state in court over the law, Iowa turned to the faith-based Thomas More Society to defend it.
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The “heartbeat” law, which was to have taken effect Sunday, is on hold for now since both sides in the lawsuit agreed to a temporary injunction.
Kennedy disappointed conservatives in 1992 when he co-wrote an opinion reaffirming a constitutional right to abortion. Although he later backed some restrictions — voting to uphold a federal ban on some late-term abortions — he cast the decisive vote to strike down Texas regulations on clinics and doctors in 2016.
A shift on abortion could be just the beginning. Kennedy was a crucial vote for gay rights and wrote the historic 2015 ruling legalizing same-sex marriage.
The strength of that ruling is being challenged by business owners who oppose same-sex weddings and say they shouldn’t have to provide services for them.
The court ruled narrowly in one such case, involving a Colorado baker, in its recently concluded term, but the issue is almost certain to return soon, possibly with a case involving a Washington State florist.
The ruling itself is probably more secure than other precedents, in part because the country has come to accept it, said Jeffrey Rosen, president of the National Constitution Center in Philadelphia.
The ruling has “strong majority support,” he said. “Over time, the court has tended to follow the election returns.”