Abortion rights in ‘dire, immediate danger’ as Anthony Kennedy retires

The US supreme court legalized abortion in 1973. Now, 45 years later, activists say the departure of the court’s moderate, Justice Anthony Kennedy, represents the most direct threat to reproductive freedom since abortion was legalized.

Pro-choice advocates said Kennedy’s retirement represents a “dire, immediate danger” to women’s reproductive freedom. Though the supreme court is not expected to rule on abortion matters in the near future, all of the potential nominees shortlisted by the Trump administration are believed to be jurists who would overturn the landmark decision, Roe v Wade, given the opportunity.

“Today, Justice Kennedy announced his retirement, and because President Trump will nominate the next supreme court justice, a woman’s constitutional right to access legal abortion is in dire, immediate danger – along with the fundamental rights of all Americans,” said Ilyse Hogue, president of NARAL Pro-Choice America.

What is Roe v Wade?

Norma McCorvey, pictured, was the real name of the woman known as “Jane Roe” in the landmark 1973 US supreme court case Roe v Wade, which established the right of American women to have abortions.

McCorvey became the plaintiff in 1970 after she met with two lawyers looking for a test case to challenge the abortion ban in Texas, where it was a crime unless a woman’s life was at risk. Similar statutes were in place in nearly every other state at the time.

At the time, McCorvey was pregnant, unmarried, unemployed and unable to obtain an abortion legally or otherwise.

The case went to the supreme court, which handed down the watershed ruling that a woman’s right to make her own medical decisions, including the choice to have an abortion, is protected under the 14th amendment.

McCorvey never had an abortion. Her case, which proceeded largely without her involvement, took too long to resolve, and she gave birth to a child that she placed for adoption.

Several years after the ruling, she publicly revealed her identity and became involved in the pro-abortion rights movement. But after a conversion to Christianity, she became an anti-abortion rights activist. Before she died in 2017, McCorvey had said it was her wish to see Roe v Wade overturned in her lifetime.

“Our country faces a moment of deep crisis – a crisis of rights, of values and of leadership,” she said. “The deeply-divided decisions from the supreme court this week are a clear warning that our most cherished values are in jeopardy, and now hang in the balance. Women will not go back to the days when abortion was illegal in this country.”

Anti-abortion activists, meanwhile, described Kennedy’s retirement as a turning point in the movement.

“Justice Kennedy’s retirement from the supreme court makes a pivotal moment for the fight to ensure every unborn child is welcomed and protected under the law,” said Susan B Anthony List president Marjorie Dannenfelser.

For decades, American anti-abortion activists have chipped away at reproductive freedoms, as legislatures piled on restrictions. That strategy was developed, in part, to avoid court decisions that could strengthen Roe’s precedent. Kennedy’s retirement is likely to further embolden anti-abortion activists, who have already started to pass some of the world’s most restrictive anti-abortion laws.

For example, in Iowa, activists successfully passed a ban on abortion after a fetal heartbeat is detected, roughly six weeks into a pregnancy. That is before most women know they are pregnant.

At the time, activists intended for the law to end up in court, which it has, where it could be appealed to higher and higher courts. Eventually, they hoped, it would land in the supreme court. Trump has also made dozens of conservative nominations to lower courts, making it more likely for Roe to be challenged in the supreme court.

Kennedy’s departure is Trump’s second opportunity to nominate a justice to a lifetime supreme court seat. There are nine justices, four conservative and four liberal. Kennedy, 82, considered a moderate conservative, was an unpredictable swing vote.

Trump pledged to use the same shortlist of justices released when he nominated his first supreme court justice, conservative Neil Gorsuch. The list was assembled with help from the Federalist Society, an anti-abortion, conservative legal organization.

Among those on the shortlist is William Pryor, an Alabama judge who once called Roe the “worst abomination in the history of constitutional law”. He also wrote that the decision “led to the slaughter of millions of innocent unborn children”.

Another shortlisted judge is Charles Canady of Florida. As a congressman, Canady coined the term “partial birth abortion” to describe the surgical procedure, and introduced a bill to ban the practice in 1995. The bill was vetoed by former president Bill Clinton, but later approved by former president George W Bush.

“We also know that for decades, a multimillion-dollar, extreme, anti-choice movement has quietly and aggressively chipped away at that right in state legislatures, in lower courts, and now from within the Trump administration,” said Hogue. “Their stated goal, clearly and loudly, is overturning Roe v Wade.”

Since Trump took office, he has instituted a “global gag rule” that bars doctors receiving US aid from providing abortion information, created a department to protect health workers who have religious objections to procedures or policies, and Republicans have moved to defund Planned Parenthood, the nation’s largest women’s healthcare provider.

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