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How Justice Kennedy's Retirement Could Spell Doom for Abortion and Gay Rights

President Donald Trump could appoint a conservative Supreme Court Justice keen on overturning landmark rulings.

by Marie Solis
Jun 27 2018, 9:12pm

President Donald Trump's base considers his appointment of Supreme Court Justice Neil Gorsuch one of his foremost achievements so far during time in office. Now that Justice Anthony Kennedy has announced his retirement, Trump will have the chance to take another victory lap, appoint a conservative judge to replace Kennedy, and roll back the landmark rulings that gave women, LGBTQ people, and other groups protections under the law.

The ruling in most imminent danger is Roe v. Wade. Trump made clear his intentions to overturn the 1973 abortion rights ruling during his presidential campaign when, during one of his final debates against Hillary Clinton, he promised to appoint "pro-life" judges to the bench who would repeal it. Months before he was elected, Trump had even released a list of potential Supreme Court nominees, which reproductive rights advocates called "women's worst nightmare." Later, he updated the list to include Gorsuch, and after his appointment in April 2017, Trump rolled out more names, already anticipating a second, third or fourth appointment.

At the same time, Republican lawmakers on the state level were introducing scores of anti-abortion bills across the country, each one seemingly more drastic—and blatantly unconstitutional—than the last. But conservatives knew exactly what they were doing: They reasoned that by the time the laws got appealed up to the Supreme Court, there would be a new Trump-appointed justice ready to overturn Roe v. Wade.

With Kennedy's impending retirement, their long-con may just pay off.

"States may be producing laws which, if upheld, may be the vehicle for weakening Roe if not providing an occasion to overturn it," Michael Gerhardt, a constitutional law expert, told Newsweek in November. Fetal heartbeat bills, 15-week bans and the like involve "narrowing the window for abortion until it gets to the point where it's closed entirely," he said.

Anti-abortion groups have already rejoiced over news that Trump could have a chance to overturn Roe v. Wade during his time in office, seeing the development of Kennedy's retirement as a crystallization of their hopes for his presidency. "This is the moment conservative women have been waiting for—the chance to return justice and constitutional limits to the nation’s highest court," Penny Nance, CEO and president of Concerned Women for America, said in a statement on Wednesday. "This is the reason why they voted overwhelmingly for Donald J. Trump over Hillary Clinton."

But it's not just abortion rights that are at risk — a Supreme Court with two Trump-appointed judges could have a hand in overturning some major gains in the LGBTQ rights arena as well.

Kennedy wrote a number of the majority decisions for landmark pro-gay rights Supreme Court rulings, which have formed a crucial part of his legacy on the court. He made his first mark on the gay rights movement in 1996, when he penned the decision on Romer v. Evans, striking down a law that prevented gay and bisexual residents in Colorado from receiving legal protections from discrimination. But the most recent and memorable of Kennedy's majority opinions came in 2015, when Supreme Court justices voted 5-4 on the Obergefell v. Hodges case to legalize same sex marriage in the United States.

"It would misunderstand these men and women to say they disrespect the idea of marriage," Kennedy wrote in his decision at the time. "Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right."

Democratic lawmakers and activists are already gearing up for what will be an intense battle to prevent the Senate from confirming another Trump pick to the Supreme Court.

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In the immediate aftermath of news of Kennedy's retirement, Senate Democratic Whip Dick Durbin called on Senate Majority Leader Mitch McConnell to abide by his own precedent (which he set when he blocked Obama pick Merrick Garland's confirmation) and wait until after the midterm elections to move forward with confirmation hearings. And NARAL Pro-Choice America President Ilyse Hogue said she's ready to lead her organization in a battle to preserve reproductive rights.

“Our country faces a moment of deep crisis—a crisis of rights, of values, and of leadership," she wrote in a statement on Wednesday. "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."