Pro-life groups see opportunity in Supreme Court seat vacated by Anthony Kennedy

President Donald Trump speaks to the media on June 27 regarding the announcement that Supreme Court Associate Justice Anthony M. Kennedy will retire at the end of July. (AP Photo/Pablo Martinez Monsivais)President Donald Trump speaks to the media on June 27 regarding the announcement that Supreme Court Associate Justice Anthony M. Kennedy will retire at the end of July. (AP Photo/Pablo Martinez Monsivais)

With Washington bracing for the battle over who will fill the Supreme Court seat being vacated by retiring Justice Anthony Kennedy, pro-life groups see an opening to overturn the 1973 Roe v. Wade court decision that legalized abortion nationwide, a reversal that could bring the debates over abortion back to the states.

“Justice Kennedy’s retirement from the Supreme Court marks a pivotal moment for the fight to ensure every unborn child is welcomed and protected under the law,” Marjorie Dannenfelser, president of the Susan B. Anthony List, said in a statement on Wednesday.


Though Mr. Kennedy was appointed by a Republican, President Ronald Reagan, he tended to side with the more liberal wing of the court on so-called social issues, including same-sex marriage and abortion.

“I believe we will end abortion, and ensuring that the next Supreme Court justice is pro-life is the best way to start.”

The president of Americans United for Life said in a statement that she hopes President Trump will appoint a justice who could swing the court toward upholding laws restricting abortion. With Mr. Kennedy’s retirement, Catherine Glenn Foster said, her group urges President Trump “to nominate a committed constitutionalist to the Supreme Court who will hew to the intended meaning of the nation’s charter and refrain from employing it as a means of social engineering.”

The Rev. Frank Pavone, the head of Priests for Life, took to Twitter to urge his followers to “join with us in what could be the battle of our lifetimes.”

“I believe we will end abortion, and ensuring that the next Supreme Court justice is pro-life is the best way to start,” Father Pavone wrote, adding that he hopes for “a consistently pro-life justice to be nominated and confirmed to the Court.”

Mr. Trump, who signed a letter this week to anti-abortion activists meeting in Kansas in which he said he is “dedicated to protecting the lives of every American, including the unborn,” told reporters on Wednesday that he would choose his nominee from a list of 25 names the White House released last November in anticipation of possible Supreme Court vacancies.

The reported frontrunner on that list is Brett M. Kavanaugh, a federal appellate court judge for the District of Columbia Circuit who once clerked for Mr. Kennedy. Like Justice Neil Gorsuch, who was added to the Supreme Court in 2017, Mr. Kavanaugh completed high school at the Jesuit-run Georgetown Prep School. Mr. Kavanaugh, who is Catholic, later graduated from Yale Law School, worked on the special counsel investigation of President Bill Clinton and served as a staff secretary to President George W. Bush.

The reported frontrunner is Brett M. Kavanaugh, a federal appellate court judge for the District of Columbia Circuit who once clerked for Mr. Kennedy.

According to his official biography, Mr. Kavanaugh volunteers with Catholic Charities, tutors at a D.C. Jesuit middle school and is a parishioner at Blessed Sacrament Catholic Church in Washington.

Another name under consideration is Amy Coney Barrett, a federal judge who was previously a law professor at the University of Notre Dame. Ms. Coney Barrett made headlines last year when, during her confirmation hearing as a federal judge, questions from some senators drew accusations of anti-Catholic bias.

Writing at Bloomberg, columnist Ramesh Ponnuru urged the president to select Ms. Coney Barrett, writing, “She is the youngest of the five top choices, which is a mark in her favor given that the nominee will have life tenure and Trump will want one who will leave a lasting mark on the law.”

Mr. Ponnuru speculated that Ms. Coney Barrett would support overturning Roe vs. Wade and wrote that such a reversal “would be better if it were not done by only male justices, with every female justice in dissent.”

Overturning Roe, long a goal of pro-life organizations, would not ban abortion. Instead, it would allow states to regulate the practice. Before Roe was decided, 17 states allowed abortion in some cases. Following the decision, all 50 states were required to legalize abortion.

Mr. Ponnuru said that overturning Roe vs. Wade “would be better if it were not done by only male justices, with every female justice in dissent.”

Other names reportedly on Mr. Trump’s short list include Amul R. Thapar, a federal judge in Kentucky; Raymond Kethledge, a federal judge in Michigan; and Thomas M. Hardiman, a federal judge in Pennsylvania.

Kristen Day, head of Democrats for Life, told America, “We have to prepare for a post Roe v. Wade world and we’re not there yet. We have a lot more work to do.”

She said that Democrats who oppose abortion are in a “precarious” situation when it comes to considering judicial appointments. While a conservative nominee may align with some pro-life goals, he or she could rule against other policies important to both progressives and pro-life activists.

Even if Mr. Trump appoints a justice with pro-life views, some say it is not a guarantee that Roe will be overturned.

“Liberals should be less despondent—and conservatives should be less giddy—about Justice Kennedy’s retirement,” wrote David Lat, the editor of the legal-affairs website Above the Law. “This time next year—or the year after that, or the year after that—things won’t be that different. We won’t be living in a nation where abortion, gay marriage, and affirmative action are all illegal by June 2019—or June 2020, or June 2021. There might be some changes at the margins, but nothing fundamental.”

Mr. Lat wrote that he believes Chief Justice John Roberts will work to preserve the court's reputation by avoiding any dramatic decision on abortion or gay marriage, which was legalized nationwide by the court in 2015.

“Chief Justice Roberts is an institutionalist who guards the credibility and political capital of the Court closely; he would surely want to avoid the unfathomably bitter, nationwide controversy that overruling Roe would create,” Mr. Lat wrote, though he conceded the court may “shift a bit to the right on abortion.”

Charlie Camosy, an ethicist at Fordham University who opposes abortion, offered a similar prediction on Twitter.

“Pro-lifers of a certain age remember the last time Republicans got enough judges to overturn Roe. They gave us PP v Casey,” Mr. Camosy tweeted on Thursday, referring to the 1992 case in which Mr. Kennedy surprised court watchers by reaffirming the validity of Roe.

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“I worry about Roberts, frankly,” Mr. Camosy wrote. “He might be the next Kennedy.”

Comments are automatically closed two weeks after an article's initial publication. See our comments policy for more.
ravi kanth
9 months 3 weeks ago

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J Cosgrove
9 months 3 weeks ago

What are the odds that America, the magazine, will say positive things about Trump's supreme court justice choice? Mr. O'Loughlin has given hope to the liberals that Justice Roberts will defect and be the new Kennedy.

Lisa Weber
9 months 3 weeks ago

The political problem with making abortion entirely illegal is that two-thirds of Americans want abortion to be legal and only one-third want it to be entirely illegal. It would be political suicide in most states for legislators to make it illegal. A secondary problem is that the right to privacy in reproductive decisions is why abortion is legal. Restricting abortion would offend some but not most. Removing the right to privacy in reproductive decisions would threaten women's access to contraception and 98% of Americans use contraception at some point in their lives. It is a more complex issue than what is usually presented.

Vincent Gaglione
9 months 3 weeks ago

Overturning Roe v. Wade returns the decisions on allowing abortions to the states. It does not end abortions. In many instances already, various states have essentially so restricted abortions as to make them impossible to obtain.

The fervor to accomplish the overturn of Roe v. Wade sounds to me more like the need for political and cultural hegemony than securing any real effect on saving the unborn. I only wish the same fervor was put into the hard work of persuading people to have their children and the hard political choices of creating economic, social and personal security to those who choose life. That effort is what I see lacking among most of those who claim to be pro-life and which persuades me of the naivete and the hypocrisy of many in the pro-life movement.

Finally, in this pluralistic nation, I still find this effort to be an imposition of religious beliefs/values on citizens who do not believe the same.

Stuart Meisenzahl
9 months 3 weeks ago

While generally agreeing with your comment I think your last sentence goes too far. It is perfectly appropriate and possible, with out regard to religious principles, to determine that there is a question of competing Constitutional rights: Right of the Woman/Mother over control of her body vs the Right of the Fetus/Child to life. The question of whether the unborn is tissue without rights or "a constitutional person" is squarely within the scales of science. Each year there is a greater accumulation of scientific evidence that a Constitutional Person is involved. A consensus scientific determination that a fetus feels pain may well tip the scales
The religious question of inculcation of a "soul" is completely extraneous to this determination .
I readily grant you that a religious principle may well affect the interpretative judgement of a given Court but that bias like all the other biases is suppose to be parked outside the Court House. That includes a bias in favor of the woman's right to control her body.
Judge Scalia put it perfectly when he stated that adherence to the Constitution and the law will frequently horrify the personal sensibilities of the deciding judge but such adherence is what is required
It should be noted in passing that the so called "Privacy Right" was found by the Roe Court " in the penumbra of the Constitution ."....a tacit admission that you won't easily find it. For Chief Judge Roberts and Justice Gorsuch that basis of the Roe Decision may well be suspect. But both of those Judges have extraordinary fidelity to the venerated court doctrine of "Stare Decisis " which poses an almost impossible hurdle to outright rejection of Roe.

Stanley Kopacz
9 months 2 weeks ago

This court, even with Kennedy, had no problem overturning 40 year precedent in the public union dues case. I foresee a conveyor belt for pro-corporate, anti-union, anti-consumer decisions. As for overturning Roe, I'd like to see that happen so we could see if it would just be another Prohibition, and just as enforceable. But I guess it depends on Collins and Murkowski.

Crystal Watson
9 months 3 weeks ago

Today Susan Collins says she will not vote for a Supreme Court Justice who will overturn Roe v Wade. Hopefully this will stop the confirmation of Trump's candidates, all pro-life, who would impose a minority religious view on our whole country.

Anne Danielson
9 months 2 weeks ago

“a reversal that could bring the debates over abortion back to the states.”

It is important to note that due process, is binding in both State and Federal Law; abortion is not a State Right’s issue but a human issue.

“natural persons” as those “[s]uch as the God of nature formed us.”

All human persons exist in relationship, from the moment of conception as a son or daughter, and if that son or daughter has siblings, a brother or sister, with the future potential of becoming a husband or wife, father, or mother. Only human persons have the potential of existing in relationship as husband and wife.

From the moment of conception, all human persons are alive until the moment of their death. Every son or daughter of a human person is a natural person, not an artificial person, which is why our Founding Fathers stated, unanimously: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness.” Our Founding Fathers, by recognizing God to Be The Author of our unalienable Rights, recognized God to be The Source of Law and Morality.

They did not say that all men are born equal or that these truths are only self-evident in public, not in private.

It is a self-evident truth, that a human person can only conceive a human person, and that every son or daughter of a human person can only be, in essence, a human person. You have been you, from the moment of your conception, and I have been me from the moment of my conception.

Every son or daughter of a human person, from the moment of conception, exists in Time and Space, and thus, with Time, has the potential to continue to move, grow, and develop. The fact that every human person begins their life in their mother’s womb, which serves to protect and nurture us during the most delicate state of our existence, as we move, and grow, and respond to our environment, does not change the essence of our personhood as a beloved son or daughter.

It is not possible for one to be defending and protecting children from harm, while condoning the destruction of the life of a son or daughter residing in their mother’s womb. God, The Author of Love, of Life, and of Marriage, not Caesar, John Locke, or King John, Is The Author of our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, thus in regards to our unalienable Rights, God’s Law Is Supreme.


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