That could be bad news for reproductive-rights activists, who have warned for months that the high court’s abortion precedents are unlikely to withstand the addition of Trump’s two nominees, Justices Neil Gorsuch and Brett Kavanaugh.
Leana Wen, president of Planned Parenthood Federation of America, said in a statement Wednesday that it was “increasingly likely” that the landmark abortion ruling Roe v. Wade could be overturned.
And even if Roe, which made abortion legal nationwide, is not overturned, a ruling on this case in favor of Louisiana could be nearly the same as if it had been, warned Jen Dalven, director of the ACLU’s Reproductive Freedom Project.
“For thousands of women, the result would be exactly the same as if you overturned Roe v. Wade,” Dalven said. “It’s a sneaky, stealthy way to deny abortion access for thousands and thousands of women without having to get that headline.”
Thursday night’s vote was the first time that Trump’s two nominees had to address their views on abortion since their Senate confirmation hearings. During those hearings, Kavanaugh and Gorsuch said they viewed Roe as settled law.
In a move that alarmed civil rights groups, both men said Thursday that they would have allowed the Louisiana law to take effect.
Gorsuch joined his fellow conservatives, Justices Clarence Thomas and Samuel Alito, in saying he would have permitted the law to take effect as soon as Friday. Kavanaugh agreed, but wrote separately that he would be open to reconsidering the legality of the law if the dire warnings from abortion rights groups materialized.
Kavanaugh’s dissent had noted similarities to his only previous decision on abortion, issued while a federal appeals court judge in Washington, Dalven said. That decision, which was ultimately overturned, would have delayed a pregnant 17-year-old immigrant from obtaining an abortion.
Dalven said Kavanaugh had now twice effectively voted to block abortions while cloaking the decision in technical reasoning.
“I can’t look into his mind to understand the intention behind it, why he’s doing it that way, but the effect is the same,” she said.
Cornell’s Dorf said he expected that if the court does decide to review the law next term, the justices are likely to take a page out of Kavanaugh’s playbook. He said they could likely find specific, technical grounds to find the Louisiana law constitutional without expressly overturning their own 2016 precedent on the similar Texas law.
“There is an argument by some in the pro-choice community that this is the worst of all possible worlds,” Dorf said. He said that outcome could leave in place the “illusion of an abortion right,” without generating the type of headlines that would energize liberals.
“I think that is a real concern, but I don’t think that it’s as bad as explicitly overruling [Whole Women’s Health]. You can lose by winning, but it’s usually worse to lose by losing,” he said.