The implications of Brett Kavanaugh’s confirmation for reproductive health politics and policies in the United States

Last month, Brett Kavanaugh, was appointed to the Supreme Court of the United States. Donald Trump made it clear that he would only nominate justices approved by the Federalist Society, and who will vote to overturn Roe v. Wade. Judge Kavanaugh’s confirmation tips the balance of the court and puts women’s constitutional right to abortion at risk.

The Supreme Court has had a longstanding Republican majority, but the replacement of Anthony M. Kennedy with Brett Kavanaugh will nonetheless have major effects. First, Kennedy was not a consistent party line Republican, and he was particularly likely to break with the position of the other four Republican judges on “social” issues such as abortion and LGBT concerns. Kavanaugh, by contrast, has been a longstanding leader of the Federalist Society, an organization dedicated to promoting partisan Republican judges. He will not be a swing vote like Kennedy was.  

The effects of this change to a reliably Republican court will be most visible in the social issues where Kennedy wavered. In particular, abortion rights and broader reproductive rights including contraception are endangered. With Kennedy as part of a longstanding 5-4 majority, the 1973 Roe versus Wade decision that legalized abortion has been maintained, while being slowly eroded by increasingly broad exceptions that allowed states to limit abortion access (e.g. onerous regulations on providers, waiting periods, invasive tests). With this fifth vote to restrict the ability of women to access and physicians to provide abortion, that trajectory will speed up. In the best case, the US will revert to a pre-Roe state where a woman’s ability to access a safe abortion depends on which state she resides. In the worst, and likely, case, Republican federal legislators will take advantage of the Court’s erosion of privacy rights to pass increasingly tough federal restrictions on abortion. Opposition to abortion is a much stronger political motivation than any theory about the appropriate distribution of powers in a federal system and we should not assume that any appeals to federalism are made in good faith.

In the immediate aftermath of an overturning of Roe, abortion would be illegal in those US states which have not specifically passed legislation overturning pre-Roe laws on their books which substantially limited access to legal abortion. Further, there are states which have passed laws since Roe limiting access to abortion which have been deemed unenforceable due to Roe and other decisions since then (including Planned Parenthood v Casey, and Whole Woman’s Health v. Hellerstedt). Therefore, if Roe were to be overturned, these old laws would be reinstated and the new ones would go into effect. In all, four states have laws that automatically ban abortion if Roe is overturned, nine states still have their unenforced, pre-Roe abortion bans in place, and seven states have laws expressing intent to restrict the right to legal abortion to the maximum extent permitted by the U.S. Supreme Court in the absence of Roe (Guttmacher 2018). Just this week, in the mid-term elections, voters in both West Virginia and Alabama passed ballot initiatives which changed their constitutions and stating there is no right to abortion in those states.

Politicians can claim that abortion need never happens, but that is simply untrue. Almost a million women a year have exercised their right to safe, legal abortion since the passage of Roe, demonstrating the necessity of this procedure. Further, public opinion remains supportive of abortion; currently, 58% of Americans say abortion should be legal in all or most cases. No other medical procedure in this country receives as much scrutiny as abortion, and the politicization of what should be a decision between a patient and her medical provider is unwarranted. Everyone should be able to make healthcare decisions, including the decision to have an abortion, with dignity and respect, and without politicians interfering in the examination room. 

Two of us are political scientists, but one of us is a doctor, for whom this is regularly brought home. Dr. Gladstein has seen innumerable patients who need an abortion for serious medical co-morbidities, lethal fetal anomalies, or other reasons such as trying to leave an abusive relationship, or the inability to afford another child. Abortion is safe, essential health care for all these women and more.

Republicans have been seeking control of the Supreme Court for at least forty years, and repealing Roe v. Wade has been a rallying call for decades. However, as research has demonstrated over and over, abortion happens whether it is legal or not. The difference is whether it is safe and accessible. When abortion becomes clandestine, women die. Physicians take an oath to do what’s best for patients. That includes providing them with a full range of women’s health care services, including abortion, and ensuring access to health care that values their autonomy, privacy and dignity. This administration has made it clear it values none of those things, and least of all, women themselves.

Natalie Gladstein, MD, MSc, Obstetrician/Gynecologist and Physicians for Reproductive Health Fellow

Scott L. Greer, PhD. Professor of Health Management and Policy, Global Public Health and Political Science, University of Michigan

Sarah Rominski, MPH, PhD. Research Assistant Professor, Department of Obstetrics and Gynecology, University of Michigan.  

Competing interests: None declared