That’s the question now that President Donald Trump has chosen Judge Brett Kavanaugh as his nominee to replace retiring Supreme Court Justice Anthony Kennedy.
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Reversing the landmark case would not automatically make abortion illegal across the country. Instead, it would return the decision about abortion legality to the states, where a patchwork of laws are already in place that render abortion more or less available, largely depending on individual states’ political leanings.
“We think there are 22 states likely to ban abortion without Roe,” because of a combination of factors including existing laws and regulation on the books and the positions of the governor and state legislature, said Amy Myrick, staff attorney at the Center for Reproductive Rights, which represents abortion-rights advocates in court.
“The threat level is very high now,” Ms. Myrick said.
Judge Kavanaugh never opined on Roe v. Wade directly during his tenure on the U.S. District Court in Washington. In his 2006 confirmation hearing for that position, though, he said he would follow Roe v. Wade as a “binding precedent” of the Supreme Court – which lower-court judges are required to do.
Abortion opponents are buoyed by the pick.
“Judge Kavanaugh is an experienced, principled jurist with a strong record of protecting life and constitutional rights,” Marjorie Dannenfelser, president of the Susan B. Anthony List, said in a statement. She spearheaded support for Trump in his presidential campaign after he promised to appoint to the Supreme Court only justices who would overturn Roe v. Wade.
Justice Kennedy, by contrast, was a swing vote on abortion issues. He frequently sided with conservatives to uphold abortion restrictions. However, in key cases in 1992 and 2016, he sided with liberals to uphold Roe’s core finding that the right to abortion is part of a right to privacy that is embedded within the U.S. Constitution.
Even now, with Roe v. Wade’s protections in place, a woman’s ability to access abortion is heavily dependent on where she lives.
According to an analysis by the Guttmacher Institute, a reproductive-rights think tank, 19 states adopted 63 new restrictions on abortion rights and access. At the same time, 21 states adopted 58 measures last year intended to expand access to women’s reproductive health.
Since 2011, states have enacted nearly 1,200 separate abortion restrictions, according to Guttmacher, making these types of laws far more common.
As of now, four states – Louisiana, Mississippi and North and South Dakota – have what are known as abortion “trigger laws.” Those laws – passed long after Roe was handed down – would make abortion illegal if and when the Supreme Court were to say Roe is no more.
“They are designed to make abortion illegal immediately,” said Ms. Myrick.
Another dozen or so states still have abortion bans on the books that predated Roe v. Wade.
Some have been formally blocked by the courts but not repealed. Those bans could, at least in theory, be reinstated, although “someone would have to go into court and ask to lift that injunction,” said Ms. Myrick.
States could simply begin enforcing other bans that were never formally blocked, like one in Alabama that makes abortion providers subject to fines and up to a year in jail.
At the same time, Ms. Myrick said, “there are 20 states where abortion would probably remain safe and legal.”