Quick Take: What is the Future of Roe v Wade if Kavanaugh Joins the Court?

On Tuesday, September 4, the Senate Judiciary Committee will hold its first hearing regarding Judge Brett Kavanaugh, President Donald Trump’s second nominee to the U.S. Supreme Court.

Nominees typically keep their views under wraps during such hearings – undoubtedly, many are wondering whether Kavanaugh would move to overturn or roll back Roe v. Wade, leaving abortion rights to be decided by the states. “I’m expecting a pretty boring set of hearings,” said David S. Cohen, JD, a professor in Drexel University’s Kline School of Law.

Cohen, an expert in constitutional law, abortion and reproductive rights – explains what’s at stake: “Judge Kavanaugh will tip the balance of the Court against abortion rights. If he is confirmed, it is likely that he will vote with the other conservatives to overturn Roe v. Wade. But, even if they don’t go that far, they will allow the states much more leeway in regulating abortion, making this common and safe medical procedure that much more difficult in some states for women to obtain.”

Q: President Trump’s past rhetoric has alluded to sending the issue of abortion to the states – how does the nomination of Kavanaugh affect Roe v Wade?

A: If the Supreme Court overturns Roe, it won’t mean abortion is illegal everywhere. Rather, it would mean that states are free to do what they want with abortion. In that situation, some states would outlaw it entirely, others would permit it with very few (if any) restrictions, while many others would keep it legal but put all sorts of restrictions on the procedure. If that were to happen, whether women have bodily autonomy would depend on what state they happen to live in.

Q: If Kavanaugh joins the court, what kind of steps may he take to roll back Roe v. Wade? Who would be most affected and what is at stake?

A: Judge Kavanaugh has expressed skepticism of Roe in the past, but he wouldn’t have to be part of a Court overturning the case for there to be a drastic effect on women. Already abortion is a procedure that is regulated in ways that have nothing to do with evidence-based medicine. With Judge Kavanaugh on the bench, it is likely to get even worse. When abortion is over-regulated, the ones who suffer the most are the ones who already face the biggest disadvantages in society – poor women, women of color, rural women and immigrant women. They are the ones who will have the hardest time getting the medical care they need.

Q: Looking ahead of Kavanaugh’s hearings, who can we expect to be the key influencers when it comes to securing his place on the Supreme Court?

A: What will really matter will be the votes of just a handful of senators. If every Republican senator votes for him (including John McCain’s yet-to-be-named replacement), he has 51 votes and will become a justice regardless of what the Democrats do. Abortion rights supporters are hoping that Senators Susan Collins (R-Maine) and Lisa Murkowski (R-Ark.) might vote against him because they support abortion rights and don’t want to see Roe overturned. In order for that to matter though, all 49 Democrats and Independents must vote against Kavanaugh, and that’s no guarantee either. Democratic Senators from Alabama, West Virginia, Florida, Indiana, Missouri and North Dakota are facing tough re-election campaigns in November in states President Trump won, so they may bow to pressure to confirm the President’s nominee.

This small group of senators will decide the fate of abortion rights for generations to come.

Media interested in an interview with David S. Cohen, should contact Emily Storz at els332@drexel.edu or 215.571. 2705

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