Roe v. Wade Under Assault: President Trump Intends To Make Good On His Anti-Choice Promise By Appointing A Justice To Overturn Roe

Roe v. Wade, which protects a woman’s right to privacy and to make her own reproductive health care choices, faces an immediate threat with the retirement of Justice Kennedy. President Trump has repeatedly stated that he would apply a litmus test and only select Supreme Court nominees who would overturn Roe v. Wade and oppose a woman’s right to choose. Justice Kennedy was the deciding vote in two landmark decisions protecting Roe. Combined with the fact that legal challenges to Roe in states throughout the country are imminent and poised to succeed immediately if the next Justice doesn’t protect Roe, women’s reproductive freedom is at stake with this nomination.

JUSTICE KENNEDY WAS THE DECIDING VOTE ON LANDMARK DECISIONS TO PROTECT WOMEN’S RIGHTS UNDER ROE V. WADE

• Justice Kennedy wrote the main opinion in Planned Parenthood v. Casey (1992), reaffirming Roe v. Wade’s core holding that the Constitution protects a woman’s right to make fundamental decisions about her own health care, including the right to choose. 
• Justice Kennedy wrote the majority opinion in Whole Woman’s Health v. Hellerstedt (2016) striking down a restrictive anti-choice law in Texas because it put an undue burden on women’s access to reproductive health care services.

PRESIDENT TRUMP HAS PLEDGED ANY NOMINEE HE PICKS MUST PASS AN ANTI-CHOICE LITMUS TEST

President Trump repeatedly pledged to only appoint anti-choice Supreme Court justices who would overturn Roe:

• Then-President-Elect Trump: “I’m pro-life. The judges will be pro-life.” [CBS 60 Minutes,11/13/16]
• In response to a presidential debate question whether he wanted to “see the court overturn Roe v. Wade,” candidate Trump responded, “Well, if we put another two or perhaps three justices on, that’s really what’s going to be – that will happen. And that’ll happen automatically, in my opinion, because I am putting pro-life justices on the court.” [Trump-Clinton Presidential Debate in Las Vegas,10/19/16]
• In 2016, Bill O’Reilly asked candidate Trump if he had his commitment that he “would be appointing a Supreme Court justice that would overturn Roe v. Wade. Do I have it?” Trump answered, “I will appoint judges that will be pro-life, yes.”  [Fox News,5/10/16]

ANTI-CHOICE ACTIVISTS’ PLANS TO OVERTURN ROE HINGE ON THIS SUPREME COURT VACANCY

• Susan B. Anthony List President Marjorie Dannenfelser: “The most important thing that can happen this election is that voters elect Senators who will confirm a Supreme Court justice who will be the final vote to overturn Roe v. Wade.” [Susan B. Anthony List’s 2018 Mission: Elections for Life5/22/18]
• Alliance Defending Freedom Senior Counsel Jordan Lorence: “The Battle of Armageddon will come if Justice Kennedy [retires], then things are going to go thermonuclear, because that would be probably the fifth vote to overturn Roe v. Wade.” [Freedom Matters Podcast1/23/17]
• When asked, “One more turnover on the Supreme Court could make [overturning Roe] happen, right?” Americans United for Life President Catherine Glenn Foster responded, “Absolutely. One more.” [Focus Today with Perry Atkinson5/17/17]

OVERTURNING ROE COULD EFFECTIVELY BAN WOMEN’S ACCESS TO CONTRACEPTION

• Overturning Roe would undermine women’s well-established constitutional right to make their own health care decisions, including the right to contraception.  Roe is premised on the right to privacy that the Supreme Court recognized in earlier cases guaranteeing women the right to contraceptives and to make their own family planning decisions. 
• The conservative Supreme Court will not stop at overturning Roe, but will also take aim at these privacy rights. It already did so in the 5-4 Hobby Lobby case when it ruled that the owners of a company could deny their employees access to contraception coverage based on the owners’ religious beliefs.  In fact, the kinds of justices President Trump has pledged to nominate are committed to the fight against the contraception coverage requirement in the Affordable Care Act.

ROE AND A WOMAN’S RIGHT TO CHOOSE IS UNDER THREAT IMMEDIATELY IF PRESIDENT TRUMP’S CHOICE FOR THE SUPREME COURT IS CONFIRMED

• Anti-choice groups have already begun laying the legal groundwork to overturn Roe v. Wade in anticipation of Justice Kennedy’s retirement.  By their own admission, they have been working to pass a bill banning all abortion at 20 weeks at the federal or state level to give the Supreme Court an opportunity “to either gut or overturn Roe v. Wade.” [5/31/18]
• If Roe v. Wade is overturned, states would have the power to restrict a woman’s right to choose.
• At least 20 states have legislatures that are poised to enact abortion bans immediately if Roe v. Wade is overturned. Four of those states have trigger laws on the books that would automatically ban abortion if Roe is overturned.
• As legal analyst Jeffrey Toobin hasNoted, with Justice Kennedy’s retirement, “You are going to see 20 states pass laws banning abortion outright.”  Several laws that undercut the right to choose are already teed up for possible review. This includes:
• State laws that terminate Medicaid provider agreements with Planned Parenthood, and an Ohio law that bans the Ohio Department of Health from awarding funds for health programs to any entity that contracts with, or is affiliated with, an abortion provider.
• An Indiana law that requires an abortion clinic or health care facility to arrange for burial or cremation of fetal tissue. Laws in Louisiana and Missouri that require physicians who perform abortions to have admitting privileges at nearby hospitals or surgical centers.

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