The Supreme Court Justices' Abortion Stances Reflect Two Competing Lines Of Thought
Justice Anthony Kennedy announced his retirement from the Supreme Court on June 27, and immediately, pro-choice groups expressed concern over the state of abortion access and the future of Roe v. Wade in America. President Donald Trump plans to announce his replacement on July 9 and his pick could change the makeup of the court — and the country — for generations. To better understand how, understanding the Supreme Court justices' stance on abortion is key.
The Supreme Court has consistently upheld Roe v. Wade since its inception in 1973. But following Justice Kennedy's retirement, the court will sit evenly divided between liberal and conservative justices, until Trump nominates someone new.
President Trump has attempted to downplay the importance of Roe in his search for that new justice. In fact, NPR reported that his advisers have told him not to ask candidates about the case. "They're all saying, don't do that, you don't do that, you shouldn't do that. But I'm putting conservative people on," Trump told Fox Business host Maria Bartiromo on Sunday. However, the list of potential nominees released was put together by The Federalist Society, a national group of conservative lawyers known for its anti-abortion stance and desire to see Roe overturned, so it's likely that their vetted candidates hold similar beliefs.
Either way, here's how the current Supreme Court justices, including Kennedy, have sided in previous abortion cases.
Chief Justice John G. Roberts Jr.
Chief Justice John G. Roberts Jr. was confirmed to the Supreme Court in 2005 to fill Chief Justice William Rehnquist's post after Roberts served on the U.S. Court of Appeals for the District of Columbia Circuit. Roberts was nominated as a conservative justice, but has shown to be a swing vote on occasion, such as in the upheld Obamacare decision in 2012.
As far as abortion, Roberts has shown he is in favor of banning certain procedures. He joined the majority in Gonzales v. Carhart, but the decision was written by Justice Anthony Kennedy. The decision upheld the Partial-Birth Abortion Ban Act signed into law by President George W. Bush. The opinion concluded that Planned Parenthood v. Casey did not make this law unconstitutional. (Justice Clarence Thomas wrote a concurring opinion for Gonzales that said Roe v. Wade should be repealed, but Roberts chose not to join that opinion in this case.)
Early in his legal career, while working for the Reagan and Bush administrations, though, Roe frequently came up. While working in the George H. W. Bush administration as a lawyer, he signed a brief urging for the overturning of Roe, according to Jan Crawford Greenburg's book Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.
Justice Anthony M. Kennedy
Ah, the reason we're all here. Justice Anthony Kennedy is an interesting case with regards to abortion rights. He really was a swing vote. Most modern voters know of Kennedy's vote in Whole Woman's Health v. Hellerstedt, where he and four other justices found it unconstitutional for states to enact restrictions that place an “undue burden” on women pursuing abortions.
Before the Whole Woman's Health decision, Kennedy voted alongside Roberts in 2006’s Gonzales v Cardhart. It was an opinion that really didn't seem to believe in women's ability to make their own decisions. He wrote:
Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.
However, Kennedy's role with regards to abortion rights can't be forgotten because of the 1992 decision in Planned Parenthood v. Casey. Casey fundamentally upheld Roe v. Wade, but it introduced the standard of pregnancy’s "viability" to measure procedure access. Kennedy is the last member of the Casey decision on the bench.
Justice Clarence Thomas
Justice Clarence Thomas was confirmed in October 1991 to replace legendary Justice Thurgood Marshall. During his confirmation hearings, Thomas obfuscated about his beliefs on abortion when asked by Sen. Howard Metzenbaum.
This changed when he was put on the bench. In the decision for Planned Parenthood v. Casey, Thomas joined the dissenting opinion written by Justice Antonin Scalia.
Justice Ruth Bader Ginsburg
Justice Ruth Bader Ginsburg was sworn in as the Supreme Court's second ever female justice in August 1993; she was confirmed on a vote of 96 to 3.
Ginsburg made her career building legal cases for equal rights among the sexes. When Whole Woman's Health v. Hellerstedt came before the court in 2016, Ginsburg was quick to reject the "junk science" put forth as evidence. In her concurring opinion, she wrote that many procedures that have far more complications than abortion still do not have requirements for ambulatory-surgical-center or hospital admitting-privileges. She wrote:
The Texas law called H. B. 2 inevitably will reduce the number of clinics and doctors allowed to provide abortion services. Texas argues that H. B. 2’s restrictions are constitutional because they protect the health of women who experience complications from abortions. In truth, 'complications from an abortion are both rare and rarely dangerous.
Justice Stephen G. Breyer
Justice Stephen G. Breyer was confirmed to the Supreme Court in August 1994, and he has become one of the court's most liberal justices. During his confirmation hearings, Breyer said he believes Roe v. Wade to be settled law. "The case of Roe v. Wade has been the law for 21 years or more, and it was recently affirmed by the Supreme Court of the United States in the case of Casey. That is the law," Breyer told Sen. Strom Thurmond.
Breyer authored the court's opinions on Whole Woman's Health, and led the court's most recent dissent regarding abortion rights on National Institute of Family and Life Advocates v. Becerra, a case that largely sided with abortion opponents.
Justice Samuel A. Alito
Justice Samuel A. Alito filled Justice Sandra Day O’Connor's vacant seat when he was confirmed in January 2006. Since then, he's quickly become one of the court's more conservative — if not the most conservative — justice.
The Center for Reproductive Rights found that Alito "provided little substantive information" into his belief if Roe is settled law.
NPR reported that while he was working as a Justice Department lawyer, Alito wrote a memo in 1985 saying the government "should make clear that we disagree with Roe v. Wade." Further, as a federal appellate judge in the early 90s, Alito wrote that women should have to notify their spouses before an abortion in his dissent of Planned Parenthood of Southeastern Pennsylvania v. Casey.
Justice Sonia M. Sotomayor
Justice Sonia M. Sotomayor was President Barack Obama's first nomination to the court, and was confirmed in August 2009. Sotomayor said during her confirmation hearings that she considers Roe v. Wade to be settled law, and cited the due process clause of the Constitution as a reason why she believes Roe has prevailed. "The Court has said, in many cases, and as I think has been repeated in the Court's jurisprudence in Casey, that there is a right to privacy that women have with respect to the termination of their pregnancies in certain situations," Sotomayor told Sen. Al Franken at her hearings.
Justice Elena Kagan
Justice Elena Kagan was confirmed to the Supreme Court in August 2010, and she is considered a liberal justice. When confirmed, some court observers thought she might take the court to the right with regards to abortion, but Kagan has voted with liberal justices on these cases. For example, she joined the court's opinion in Whole Woman’s Health v. Hellerstedt which said Texas state law placed an "undue burden" on women seeking abortions.
Justice Neil M. Gorsuch
Justice Neil Gorsuch is the latest justice confirmed to the court, after Senate Majority Leader Mitch McConnell refused to hold hearings for President Obama's final nomination, Merrick Garland.
Gorsuch hasn't been exactly open about where he stands on abortion, but it's safe to say it's not pro-choice. He replaced Justice Antonin Scalia, the ultra conservative justice, and thus far, he's only ruled on one abortion-related case, National Institute of Family and Life Advocates v. Becerra, a case that decided whether or not crisis pregnancy centers were required to tell patients about their state-funded access to abortion and contraceptive services.
Gorsuch joined the court's opinion which concluded that these centers were not obligated to tell patients about state-funded access to abortion and contraception, as it was supposedly a violation of the First Amendment.
Chances are, whoever Trump nominates to the Supreme Court in place of Kennedy will side with the more conservative judges on abortion as well.