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The Roe War Rooms
Kavanaugh’s confirmation set the tables for an epic clash over abortion. Here’s how it could play out.
“I want to live to see the day that we put the sanctity of life back at the center of American law, and we send Roe v. Wade to the ash heap of history, where it belongs.”
— Mike Pence, 2016
Brett Kavanaugh’s nomination may have sparked an unexpected clash over sexual assault and the #MeToo movement, but the hope and fear underlying his confirmation have always been about abortion. And now that he’s been confirmed, advocacy groups invested in the abortion wars have their sights set on potential post-Kavanaugh U.S. Supreme Court cases and strategies to win them. Medium called insiders on both sides to get a sense of how it could all play out.
Topline: Kavanaugh could, in short order, rule on 13 abortion cases, each of which hovers within reach of the Supreme Court and “provides an opportunity to overrule or severely weaken a woman’s constitutional right to access abortion,” according to a Planned Parenthood memo from September.
The cases in the Supreme Court pipeline can be divided into three buckets, according to Jenny Ma and Hillary Schneller, staff attorneys at the Center for Reproductive Rights (CRR), which plays a leading role in litigation and internal policy work on behalf of reproductive rights.
The first bucket involves “pre-viability” bans, laws that restrict abortions before a fetus can survive outside the womb. (Most medical professionals consider viability to be around 24 weeks, but it varies with each distinct pregnancy.)
The second involves what are known as Targeted Regulation of Abortion Providers (TRAP) laws, which attempt to drive clinics out of business by regulating everything from the width of an abortion clinic’s corridor or hallway to hospital admitting privileges. Abortion opponents contend such regulations protect women’s health, though a study published in the American Journal of Public Health in 2018 found that they “go beyond necessary and accepted standards of practice and fail to provide countervailing benefits.”
The third involves bans on specific types of abortion procedures.
Kavanaugh could, in short order, rule on 13 abortion cases, each of which hovers within reach of the Supreme Court.
Gretchen Borchelt, vice president for reproductive rights and health for the National Women’s Law Center (NWLC) in Washington, D.C., predicts the first abortion cases to reach the Kavanaugh court will involve laws banning dilation and evacuation (D&E), a common procedure used for second-trimester abortions and miscarriages.
Two federal appeals court judges earlier this summer struck down a D&E ban in Alabama over their own distaste for abortion. Judge Joel F. Dubina said he was following the Supreme Court’s lead even though he disagreed: “The problem I have, as noted in the Chief Judge’s opinion, is that I am not on the Supreme Court, and as a federal appellate judge, I am bound by my oath to follow all of the Supreme Court’s precedents, whether I agree with them or not.”
These loaded opinions, though ostensibly upholding the precedent set by Roe v. Wade, not too subtly suggest that the state of Alabama appeal the decision so that the new Supreme Court has an opportunity to reconsider that precedent.
Roe could also face direct challenges at the Supreme Court from Mississippi’s 15-week abortion ban, which has been temporarily blocked by lower courts, and Louisiana’s 15-week ban, which would only take effect if the courts uphold Mississippi’s ban. Steven Aden, chief legal officer and general counsel for Americans United for Life (AUL), predicted a 20-week case “sooner or later,” too. Seventeen states ban abortion at 20 weeks post-fertilization or 22 weeks into the pregnancy, according to the Guttmacher Institute, a research organization that supports abortion rights. President Donald Trump has repeatedly promised to sign a federal 20-week abortion ban into law if and when Congress can pass a final version.
NWLC’s Borchelt doesn’t anticipate a head-on collision with Roe at the outset of the Supreme Court’s new term, which began Oct. 1. “The chip-away ones are just further along,” she said of upcoming cases. But she cautioned that Kavanaugh and fellow conservative justices could still use them to revisit Roe and perhaps even gut it while pretending otherwise.
Both the piecemeal restrictions and direct challenges to Roe include those based on model legislation from various groups that oppose abortion or are crafted with their input. The standard-setting D&E ban, for example, originates from the National Right to Life Committee, according to Rewire.News, a progressive, nonprofit news organization that maintains a legislative tracker of abortion laws.
And Alliance Defending Freedom (ADF) helped draft Mississippi’s 15-week ban and could play a dual role, arguing in court over their own bans. The organization previously represented the challengers in the Supreme Court’s 5–4 National Institute of Family and Life Advocates (NIFLA) v. Becerra decision in June in what amounted to a major victory for the movement against abortion. The conservative majority, now-retired Justice Anthony Kennedy included, held that “crisis pregnancy centers” that intended to dissuade patients from abortion have the First Amendment right to withhold accurate information about that option. (Media relations specialist Brianna Herlihy declined repeated requests to make ADF officials available for an interview about their strategy headed into the fall’s high-court term.)
AUL is another legislative and legal powerhouse gearing up for battles ahead. The self-described “pioneer of the state-based model legislative strategy” offers model legislation to defund Planned Parenthood and ensure prenatal “nondiscrimination,” Aden, the chief legal officer and general counsel, told Medium.
An Arkansas law banning a two-pill regimen to end an early pregnancy was directly based on AUL model legislation and is facing a legal challenge. The Supreme Court in May refused to hear Planned Parenthood of Arkansas and Eastern Oklahoma’s initial challenge to the law, allowing it to stand; an appeals court subsequently blocked enforcement pending further proceedings. Planned Parenthood’s memo listed the law among the 13 cases that could come before Kavanaugh.
Kavanaugh is the justice of the “pro-life” movement’s dreams and the “pro-choice” movement’s nightmares about American law. Whether his confirmation awakens the possibility of a post-Roe nation is a question, and a future, over which they’re ready to do battle.
AUL wields significant influence through briefs filed as a “friend of the court” highlighting legal issues or supporting one of the arguments. Justice Clarence Thomas’ majority opinion in NIFLA includes a section that “closely mirrors our arguments,” Aden said. “[We] can’t take credit for it, but at least I think they” — the abortion foes on the bench — “were tracking with us.”
As far as legal challenges go, Aden explained that AUL identifies “potential hot issues” before they reach various courts of appeals and then tracks them as they wind their way up to the Supreme Court. The friend of the court briefs filed with certain courts and, eventually, the Supreme Court come next. AUL might also file legal briefs for federal and state legislators and medical groups against abortion. “We tend to make either a legislative intent argument explaining why the bill is important, what it seeks to accomplish, or a legal medical argument [about] why the measure accords with good medical practices,” he said.
After their briefs, AUL coordinates with other abortion opponents on “consciousness raising” efforts to inform the public about why an issue is important, often via social media. He wouldn’t specify the groups involved in such efforts. “I think you would find that most of the national pro-life groups have some level of informal collaboration on national issues like NIFLA,” he said.
Other abortion opponents remained tight-lipped when asked to participate in this article. Faith and Freedom Coalition spokesman Lance Lemmonds did not respond to requests for an interview with founder Ralph Reed, who was instrumental in shoring up widespread evangelical support for Trump and helped fundraise for Kavanaugh’s confirmation under the banner of the “ultimate victory for conservative and Christian values.” Susan B. Anthony List spokeswoman Mallory Quigley declined to comment as did CRC Public Relations’ Katie Hughes, who works with the Judicial Crisis Network. The Carrie Severino-led political nonprofit known as a “dark money group” doesn’t have to reveal the identities of its donors and had at least $10 million in its coffers for Kavanaugh’s confirmation. (Liberal groups newly embraced dark money to try to stop Kavanaugh, but an AdAge analysis found they were outspent 2-to-1 on television ads alone.)
Unlike anti-abortion organizations, abortion rights groups were more willing to talk about their individual and collective work. NARAL Pro-Choice America deputy policy director Leslie McGorman pointed to the “best recent example of coordination across the movement,” the 2016 case Whole Woman’s Health v. Hellerstedt. CRR represented Whole Woman’s Health, which owns eight abortion and gynecology clinics, including a Texas-based clinic held to a restrictive “clinic shutdown” state TRAP law. In an interview, McGorman said NARAL mounted a “nationwide, movement-wide [advocacy] effort” to educate the public and members alike about what a win or loss would mean for abortion rights and access, including weekly or daily alliance phone calls, digital media efforts, and field work.
“That’s the sort of coordination that would happen under a new Supreme Court,” McGorman said. “Especially if it’s a contemporary situation where Brett Kavanaugh is on the Supreme Court. Then the pallor will also be hanging over such a case because it really will be ‘What [does] Roe even mean in this country anymore?’”
Post-Kavanaugh, NARAL likely wouldn’t fund direct legal efforts because “because we’re not litigators,” McGorman said. That task falls to Planned Parenthood, the American Civil Liberties Union, and CRR. Instead, she explained that NARAL would reinforce the groups waging court battles through grassroots advocacy, member engagement, and advertising, all of which require significant fundraising by the organization and its movement allies.
Much of NARAL’s strategy focuses on lower court nominations in an effort to halt Senate Republicans from confirming virulent opponents of abortion and LGBTQ rights to the federal bench. NARAL’s political action committee raises money for pro-abortion-rights candidates, especially in states where abortion-hostile legislators and governors are crafting laws that may end up before the newly minted lower court judges and, eventually, before the newly minted Justice Kavanaugh.
NWLC won’t be in the courtroom either, but it will support litigation through legal filings to “bring aspects to the court that otherwise wouldn’t be fleshed out in the record,” according to Borchelt, the reproductive rights and health vice president. She envisioned briefs about how abortion restrictions disproportionately burden women with low incomes and women of color and how abortion access allows women to pursue their education and careers.
NWLC is thinking about new ways to frame the right to abortion, which currently exists under the U.S. Constitution’s “right to liberty,” or privacy. The high court’s reliably conservative justices have cast the right to liberty as subverting religious liberty, and Kavanaugh is likely poised to follow suit.
“We try and think of new, creative legal theories and new levers to pull to try and protect women’s access to reproductive health that isn’t just located in the federal constitution’s right to liberty,” Borchelt said.
CRR may again fight at the Supreme Court but does plenty of internal policy work, too. Ma, the staff attorney, further credited the success of national groups like hers to coordinating with reproductive health rights and justice groups on the grounds that they have “been doing this [work] for decades.”
“It’s not like because there’s a Supreme Court case, all of a sudden these folks kind of emerge,” she said. “If we see them in the next battle, it’s because they’ve always been there.”
So will all the key players on the other side of the issue. Kavanaugh is the justice of the pro-life movement’s dreams and the pro-choice movement’s nightmares about American law. Whether his confirmation awakens the possibility of a post-Roe nation is a question, and a future, over which they’re ready to do battle.