You are here

Could Roe V. Wade Be Overturned If Justice Kennedy Retires? All Eyes Are On Him

Monday, June 26, 2017

By Andrea Frazier

As the Supreme Court prepares to end its term Monday, rumors that one of its key members won't return after the hiatus has reached a crescendo. Justice Anthony Kennedy, 80, has remained mum about the speculation that he'll retire. Still, advocates for and opponents of abortion rights are anxious to find out for sure, as his potential abdication of his seat would alter the makeup of the court and pitch the issue's future into a precarious unknown. Specifically, reproductive justice supporters fear that if President Donald Trump has the opportunity to replace Kennedy, the court may vote to overturn the landmark ruling that legalized abortion on a federal level. But could Roe v. Wade be overturned if Kennedy retires?

Rumblings that Kennedy may call it quits intensified when he moved up a long-scheduled reunion of former clerks by an entire year, according to Politico. But at the event, which took place over the weekend, Kennedy's only reported "announcement" was that the bar would be open after the program ended, several guests told the blog Above the Law. Still, regardless of what Kennedy ultimately decides, the whole exercise was a reminder that women's rights to reproductive health care are in a fragile place right now under the current Republican presidential administration.

Roe v. Wade, of course, has been the law of the land since 1973, although anti-abortion crusaders in individual states have nevertheless done their best to make abortions less accessible for women. Its legality at the federal level, and the protections that come with that, have been largely upheld by a Supreme Court that in its current form is unlikely to overturn more than 40 years of precedent if such a case were to come before it. With the Senate confirmation of Trump appointee Neil Gorsuch to the bench in April, the court is now made up of four justices who are solidly conservative, four who solidly lean left, and Kennedy, the notorious wild card and swing vote.

Even though the President Ronald Reagan appointee has agreed with his conservative colleagues on issues like gun control and voting rights, according to CNN, he's actually proved to be a key player in safeguarding abortion access. It was because of him that Roe v. Wade wasn't overruled in a 1992 Supreme Court case, the Cut reported, and he again affirmed a woman's right to choose just last year in Whole Woman's Health v. Hellerstedt — a case that ultimately struck down serious abortion restrictions in Texas.

Still, Trump said in an interview with CBS's Leslie Stahl shortly after he was elected president that he considered himself to be "pro-life" and pledged to appoint justices who would work to overturn Roe v. Wade. If that were to happen, the onus to allow abortions or not would fall back to individual states — an outcome that Trump said suits him just fine. As such, Constitutional Accountability Center president Elizabeth Wydra told CNN that the possibility of Kennedy's potential retirement and ensuing replacement at Trump's hands would mean the end of abortion rights:

As the court's most important Justice — at the center of the institution's ideological balance — Justice Kennedy's ability to bridge the divide between left and right on critical issues such as the right to access abortion cannot be overstated. Replacing Justice Kennedy with a Trump nominee would almost certainly sound the death knell for Roe, just as candidate Trump promised during the 2016 campaign.

While the term "death knell for Roe" is terrifying enough, there are a few degrees of separation between that outcome and where we are now. First, Kennedy has not yet actually indicated that he plans to retire this year — and there's a very good chance that he won't. Also, even if Trump were to have the chance to replace him (or one of the liberal justices) with a far-right pick, it's not as though the law would automatically disappear. The court would have to hear an applicable case first — after it traveled through the lower court system — and then it would have to overturn its own long-held precedent. That would be a very big deal.

It's far from impossible, though. Which is one of the many reasons why the American government and public are desperate to know what Kennedy has planned.