Kennedy’s Retirement Puts Abortion Ruling in Striking Distance for Conservatives

(Bloomberg) -- Justice Anthony Kennedy’s retirement from the U.S. Supreme Court puts conservatives in striking distance of one of their most cherished goals: overturning the landmark Roe v. Wade abortion-rights ruling.

The court’s swing vote for the past dozen years, Kennedy sided with his liberal colleagues on gay rights and sometimes on discrimination and the death penalty. His Donald Trump-appointed successor could shift the court to right on each of those issues.

But nowhere will Kennedy’s departure be more significant than on the politically explosive issue of abortion. Kennedy was a Roe supporter, and the remaining justices include four who either have backed abortion restrictions or in all likelihood would. Abortion could be the central issue in a battle over Trump’s nominee in the Senate, where the Republicans’ slim majority leaves little room for defections.

"Because President Trump will nominate the next Supreme Court justice, a woman’s constitutional right to access legal abortion is in dire, immediate danger," said Ilyse Hogue, president of Naral Pro-Choice America.

Trump vowed during the campaign to appoint "pro life" justices who would overturn Roe, which legalized abortion nationwide. His first appointee, Neil Gorsuch, hasn’t ruled on the issue directly but joined the majority this week to block a California law that required anti-abortion pregnancy centers to tell patients how to get government-subsidized abortions.

Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas all have consistently voted to uphold abortion restrictions. Thomas has said he would overturn Roe.

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Republicans, who hold a 51-49 advantage in the Senate, could confirm Trump’s nominee without any Democratic votes. A potentially pivotal lawmaker, Republican Senator Susan Collins of Maine, said Wednesday she views Roe as "settled law."

“It’s clearly precedent, and I always look for judges who respect precedent,” Collins said.

Another moderate Republican, Senator Lisa Murkowski of Alaska, told reporters that Roe "is one of those factors that I will weigh, just as I weighed it with the other nominations that came before us."

Democrats moved quickly to try to make Roe a dominant issue, both in the confirmation process and the struggle for control of Congress in the November elections.

"The Senate should reject, on a bipartisan basis, any justice who would overturn Roe v. Wade or undermine key health care protections," said Senate Minority Leader Chuck Schumer of New York.

Senator Jeff Merkley of Oregon fired off a fundraising email warning supporters that the next justice could mean "Roe v. Wade being overturned."

States have been trying to test Roe. Iowa is defending a new law that would bar most abortions once a fetal heartbeat can be detected -- typically, about six weeks into pregnancy. Last month, the Supreme Court let Arkansas start enforcing a law that effectively bars pill-induced abortions, at least temporarily leaving the state with only one provider.

Kennedy, who came to the White House on Wednesday to tell the president that he was retiring, disappointed conservatives in 1992 when he co-wrote an opinion reaffirming the constitutional right to abortion. Although he later backed some restrictions -- voting to uphold a federal ban on some late-term abortions -- he cast the decisive vote to strike down Texas regulations on clinics and doctors in 2016.

A shift on abortion could be just the beginning. Kennedy was a crucial vote for gay rights and wrote the historic 2015 ruling legalizing same-sex marriage. The strength of that ruling is being challenged by business owners who oppose same-sex weddings and say they shouldn’t have to provide services for them.

The court ruled narrowly in one such case, involving a Colorado baker, in its recently concluded term, but the issue is almost certain to return soon, possibly with a case involving a Washington State florist.

The gay-marriage ruling itself is probably more secure than other precedents, in part because the country has come to accept it, said Jeffrey Rosen, president of the National Constitution Center in Philadelphia.

The ruling has "strong majority support," he said. "Over time, the court has tended to follow the election returns."

Affirmative action programs might be in jeopardy. Although Kennedy at times was skeptical of racial preferences -- and voted to strike down a core part of the Voting Rights Act in 2013 -- he cast an unexpected vote in 2016 to reaffirm the rights of universities to use affirmative action in admissions.

Kennedy "has been an important moderating force on issues ranging from LGBT rights, to abortion and affirmative action," said Sherrilyn Ifill, president of the NAACP Legal Defense Fund.

The court could become more receptive to the death penalty. Kennedy voted to bar states from executing people with mental disabilities and those who committed their crimes as juveniles. Both precedents could now become vulnerable, Rosen said.

Partisan Gerrymandering

Kennedy’s departure also might doom the drive to get the court to curb partisan gerrymandering. Opponents had hoped Kennedy and the court’s liberals would finally put limits on the practice this term, but the court ducked the issue with procedural rulings in two cases.

Republicans said they are looking for a conscientious nominee rather than one who would necessarily reach their preferred results on abortion and other issues.

"I hope the president will choose a principled, well-qualified nominee committed to upholding the rule of law and interpreting the Constitution faithfully, rather than rewriting it," said Senator John Cornyn of Texas, the second-ranking Republican.

Trump will appoint a "strong conservative" similar to the late Justice Antonin Scalia, Vice President Mike Pence said in an interview on Air Force Two.

On some issues, the court isn’t likely to shift significantly. Kennedy was a solid vote against campaign finance restrictions and wrote the 2010 Citizens United ruling, which allowed unlimited corporate and union election spending.

He voted to strike down President Barack Obama’s health care law and voted this week to uphold Trump’s travel ban as a legitimate step to protect national security.

He was one of five justices who stopped the Florida ballot recounts in the 2000 ruling that sealed George W. Bush’s election as president over Al Gore.

Even so, Kennedy’s pivotal role creates the prospect of the biggest Supreme Court shift in decades.

"There are so many case where Justice Kennedy was with the liberals," Rosen said, "and now all of them are up for grabs."

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