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Abortion could be illegal in large parts of US within 18 months after Supreme Court justice resignation, say activists

Donald Trump has vowed to appoint judges opposed to the landmark Roe v Wade ruling

Andrew Buncombe
New York
Thursday 28 June 2018 17:51 BST
Abortion could be illegal in 20 states within 18 months says CNN legal analyst

Abortion could become illegal in large parts of the US in as little as 18 months activists believe, following the resignation of Justice Anthony Kennedy from the Supreme Court and Donald Trump’s promise to appoint a replacement committed to overturning the landmark legislation protecting a woman’s right to choose.

Within hours of the resignation of 81-year-old Mr Kennedy – frequently a swing voter on the Supreme Court – Mr Trump said he was working through a list of 25 possible replacements, a list drawn up with input from a conservative group that supports a literalist interpretation of the US constitution.

“We will begin our search for a new justice of the United States Supreme Court. That will begin immediately,” he said at the White House. “And hopefully we’re going to pick somebody who will be as outstanding.”

During his 2016 presidential campaign, Mr Trump said he would only appoint justices opposed to Roe v Wade, the 1973 ruling that guaranteed the legal right to abortion. With many states already passing laws restricting such access, campaigners fear the president’s next judicial appointment could lead to that federal protection being stripped away.

“You’re going to see 20 states pass laws banning abortion outright,” legal analyst Jeffrey Toobin told CNN.

“Because they know there are going to be five votes on the Supreme Court to overturn Roe v Wade. And abortion will be illegal in a significant part of the United States in 18 months, and there is no doubt about that.”

Many observers believe Mr Trump, a thrice-married former casino magnate, cares little about the issues that fuel the nation’s so-called culture wars. Yet, he knows issues such as restricting abortion and laws that allow business exemptions from LGBT+ equality rules on religious grounds are of crucial importance to many of his supporters, particularity evangelical Christians.

Donald Trump on Justice Kennedy: 'He will be missed, but he will be retiring'

During an election debate with Hillary Clinton, Mr Trump said overturning Roe v Wade “will happen, automatically”, if he was elected because of his appointment of justices. “I am pro-life,” he said.

He said if the ruling was reversed, laws on the legality or illegality of abortion would “go back to the individual states” to decide. This was the situation before Roe v Wade. In response, Hillary Clinton said: “I strongly support Roe v Wade.”

One of Mr Trump’s first actions on entering the White House was to nominate and push for the confirmation of Neil Gorsuch to fill the gap in the court he had inherited from the Obama administration – a vacancy intentionally created by Republicans who refused to vote to confirm Barack Obama’s pick for the court, Merrick Garland.

Mr Gorsuch said during his 2017 confirmation hearing that Roe v Wade was “the law of the land”, but many activists believe that was just a reflection on the current situation.

This week, campaigners seeking to preserve a woman’s right to choose said it was vital to put pressure on politicians. Republicans currently control the Senate, which has to confirm any appointment to the Supreme Court, 51-49, and the party leadership said it wants to press ahead with such a vote ahead of the November midterms.

“We are definitely facing a national emergency when it comes to women’s rights, human rights, LBGT rights, the rights of our Muslim brothers and sisters,” Ilyse Hogue, the president of NARAL Pro-Choice America, a leading campaign group, told reporters.

“There is a multimillion dollar campaign to force Trump to make good on the promise he made during the campaign to only appoint justices dedicated to overturning Roe versus Wade and criminalising abortion.”

Campaigners point out that since 1973, there have been hundreds of laws passed by states to restrict access to abortion, especially for poorer women and women of colour.

Data collated by the The Guttmacher Institute, a research group that supporters reproductive rights in the US and globally, said 75 per cent of women who had abortions in the US were poor or of low income, 60 per cent were aged in their twenties and 62 our cent were “religiously affiliated”. Around 39 per cent of women were white, while 59 per cent were women of colour.

Among recent laws drawn up to restrict access was a bill passed in Mississippi in March that banned abortions after 15 weeks of pregnancy, a measure in Kentucky that blocked an abortion measure known as dilation and evacuation, and a law passed last month in Iowa which prevents an abortion once a foetal heartbeat is detected – usually after six weeks of pregnancy. Several of these cases are being challenged in the courts.

“Assuming the court takes any of these cases, the holdings in Roe and subsequent cases that affirmed the right to abortion would be in jeopardy,” said the institute’s Elizabeth Nash.

“The court could overturn Roe entirely or it could undercut abortion rights and allow states to enact even more restrictions, either way it would be devastating news for abortion access.”

Cynthia Romero, communications director of Catholics For Choice, a Washington DC-based pro-choice group, told The Independent some states were making it “almost impossible to get an abortion”. She said six or seven states had just a single clinic that provided abortions, making it incredibly difficult for women without means. “There are plenty of places where women are having a really difficult time.”

While Mr Kennedy was a defender of Roe v Wade, his views on abortion rights varied. One of his final votes on the court was to join the 5-4 majority that ruled in favour of opponents of abortion on free speech grounds. The Tuesday ruling said the state of California could not force religiously oriented “crisis pregnancy centres” to supply women with information about how to end their pregnancies.

Conservatives are already celebrating Mr Kennedy’s resignation and the opportunity to appoint an even more conservative justice.

“On cases involving abortion and issues of sexuality and gender, there stands to be a major sea change with Trump’s next Supreme Court. As the first GOP nominee in history to say that he would only appoint pro-life justices to the bench, Trump won over plenty of sceptics by releasing his list of solid and impartial jurists in advance of the election,” wrote Tony Perkins, president of the Family Research Council, a conservative lobbying and policy group that opposes abortion.

“For voters who ranked the Supreme Court as the number one priority in 2016 (and there were a lot of them), Kennedy’s retirement gives them another major opportunity to help President Trump appoint another Neil Gorsuch-type justice to the Supreme Court.”

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