Kennedy’s Retirement Places Reproductive Rights at a Crossroads

The United States’ highest court is at a crossroads that can determine the rights of millions of women and establish a new status quo that would severely limit sexual and reproductive health and rights. Just over a year after appointing anti-abortion Justice Neil Gorsuch to the Supreme Court, President Trump has been handed yet another opportunity to deploy the US courts to attack women’s health and rights. The impending retirement of Justice Anthony Kennedy, often a critical deciding vote on the Supreme Court, places the legal future of a number of critical issues—including the constitutional right to abortion—in severe jeopardy. Unless the Senate takes action to block him, President Trump now has the ability to turn the balance of the Supreme Court against protection of women’s health and rights.

With Trump set to announce a nominee, to be taken from a published shortlist—that was assembled with the help of anti-choice advocates—on July 9, the Senate is already gearing up for a confirmation battle that will likely hinge on many of these issues. With at least one Republican Senator already on record opposing any nominee that supports scuttling Roe, it’s fair to expect an extremely contentious and divisive confirmation process ahead of whoever President Trump selects.

Since his appointment by President Ronald Reagan, Justice Kennedy has often played the role of critical bulwark against conservative attacks on both reproductive and sexual rights. In 1992, he was a key vote in the 5-4 decision to uphold Roe in Planned Parenthood v. Casey. He again bucked conservative pressure in 2016 to reaffirm constitutional protections for abortion rights in the case of Whole Woman’s Health v. Hellerstedt.

Justice Kennedy’s retirement jeopardizes this important legacy. On the campaign trail, then-candidate Trump vowed to appoint “pro-life judges.” When asked as president-elect if he would seek to overturn the landmark Roe v. Wade decision, he said “I’m pro-life; the judges will be pro-life.” As president, Trump upheld that promise with Gorsuch as his first selection to the court. Prior to his elevation to the Supreme Court, as judge on the Tenth Circuit Court of Appeals, Justice Gorsuch had a legal record of opposing reproductive rights and freedom, including ruling in favor of defunding Planned Parenthood and allowing employers to use religious beliefs to deny access to reproductive health care. Given the Supreme Court’s current makeup and balance, the appointment of yet another anti-abortion justice could have catastrophic implications for access to safe and legal abortion in this country.

This appointment is just another round of what has been an unrelenting, well-coordinated assault on reproductive rights and freedom since day one of the Trump administration. From stacking key agencies with anti-abortion ideologues to proposing drastic funding cuts to implementing deadly policies like the Global Gag Rule, President Trump has used every opportunity to attack women’s health and rights, both in the United States and around the world. Whether domestic or global, these attacks are all part of the same agenda that seeks to control women’s bodies. The effects of this agenda are deadly, particularly for the most vulnerable and marginalized women.

The repercussions of Justice Kennedy’s exit will be felt far beyond reproductive rights. In recent years, Kennedy had emerged as a champion of LGBTQ rights, most notably writing the majority opinion in the monumental 2015 Obergefell vs. Hodges decision that guaranteed same-sex couples the right to legally marry. Once again, Kennedy proved the deciding vote in a narrow 5-4 decision, fueling concerns about future rulings if he is replaced by a more conservative justice.

In addition to these critical questions, the Supreme Court is sometimes called to weigh in on key questions of US foreign policy, meaning that Kennedy’s retirement could reverberate throughout the world. For example, the 2013 decision in Agency for International Development et al. v. Alliance for Open Society International, Inc. found an incredibly damaging provision of US policy—the anti-prostitution loyalty oath—to be unconstitutional. In this decision, in which Justice Kennedy joined a 6-2 majority, a US policy requiring recipients of US HIV funding to have a “policy explicitly opposing prostitution and sex trafficking” violated the First Amendment. With clear parallels between this policy and the current administration’s imposition of the Global Gag Rule, Kennedy’s departure could have serious ramifications if the court were to consider a related case.

Further, it could impact domestic conversations about international law. In numerous key decisions, Kennedy proved willing to cite foreign jurisprudence and international norms and standards. Referring to the “overwhelming weight of international opinion” in the Roper v. Simmons deathly penalty decision, Kennedy drew the ire of John Bolton—now Trump’s national security advisor—and other critics of multilateralism and international law. His departure—and potential replacement by a jurist who ascribes to Bolton’s school of absolute sovereignty and American exceptionalism—is yet another blow to US global leadership and respect for multilateral engagement. At a time when the Trump administration has repeatedly demonstrated its intent and willingness to walk away from international agreements, negotiations, and normative bodies (including, most recently, the UN Human Rights Council), this further retreat into isolationism is extremely concerning.

IWHC has grave concerns about any nominee who does not unequivocally support upholding and further advancing legal precedent around reproductive rights, LGBTQ rights, and human rights in the US and abroad. We strongly urge the Senate to ensure that no nominee who refuses to commit to uphold these principles is confirmed to the Supreme Court.

Photo: Geoff Livingston

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