What Justice Kennedy's Retirement Means For Abortion Rights Advocates on both sides of the abortion debate agree that the retirement of Supreme Court Justice Anthony Kennedy sets the stage for a battle over abortion rights unlike any in a generation.
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What Justice Kennedy's Retirement Means For Abortion Rights

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What Justice Kennedy's Retirement Means For Abortion Rights

What Justice Kennedy's Retirement Means For Abortion Rights

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The White House says President Trump has already dug in. He is thinking seriously about who he might nominate to replace retiring Supreme Court Justice Anthony Kennedy. The president met last night with a group of key senators, both Republicans and Democrats, to consult with them. Now, one big factor in the decision-making and the nomination battle that will follow is abortion and the potential that a more conservative court might one day overturn Roe v. Wade, the 1973 case that legalized abortion nationwide. NPR's Sarah McCammon has been covering this, and she joins us this morning.

Hi, Sarah.


GREENE: So you've been talking to activists on both sides of the abortion debate since this big and surprising retirement. I mean, where are they talking about putting their energies now?

MCCAMMON: Well, both sides are definitely mobilizing their activists and the grassroots. They see this as a really important moment and one that they've been preparing for. On the anti-abortion rights side, you know, there's been a lot of work over many years to sort of incrementally restrict abortion rights, but they see this as a much bigger opportunity. Here's what Kristan Hawkins of Students for Life had to say.

KRISTAN HAWKINS: Our goal in the pro-life movement has always been to make abortion illegal and unthinkable. And so we want Roe to be overturned, and we expect that.

MCCAMMON: And her group was out with a video, David, the day of Kennedy's resignation, saying, this is our moment; we have to seize it - and urging activists to lobby lawmakers. Abortion rights supporters, on the same token, are taking this very seriously and reaching out to their grassroots. I've heard Kennedy's departure described as devastating and extremely concerning because he was the swing vote, and on abortion, had often voted to uphold abortion rights in some really key cases. So, of course, now this fight goes to the Senate. The confirmation process will be intense. And senators on both sides seen as potentially vulnerable or likely to be open to crossing party lines will be getting a lot of attention.

GREENE: But it's almost like we're getting ahead of ourselves. We don't even know who the president's going to name yet, right? I mean, so where's that process?

MCCAMMON: Right. So during the campaign, Trump, you know, in an effort to reassure social and religious conservatives, released a couple lists of likely Supreme Court picks, and that became a really big issue in the campaign. He added a few names to that list last year, people seen as socially conservative, likely to vote with conservatives on issues including abortion. Abortion rights opponents were very happy with his first pick, Justice Neil Gorsuch. Those I've talked to say they're largely pleased with the list they've seen and they hope he'll pick from them or someone along those lines.

GREENE: But of course, one of the questions is if and when an actual case would come before the court that would give the court an opportunity to overturn Roe v. Wade. So how likely is that to happen?

MCCAMMON: Right. Well, during the campaign, Trump did promise to choose justices who would oppose abortion rights, and he said that, as he put it, in the last debate, Roe would automatically be overturned. That is not true. It would not automatically be overturned. It would have to go through the court process, and that would likely come through a challenge to a state law. There are a number of state laws out there that could be the first sort of test case for the new court when it's configured. A couple states have passed 15-week bans on abortion. In Iowa this year, a law was passed banning abortion after a heartbeat can be detected in the fetus. So that's usually six to eight weeks before a lot of women know they're pregnant. That one, abortion opponents said, they intentionally, they believe in the law, but they want to force SCOTUS, the Supreme Court, to consider this issue. At the same time, there's no guarantee that a Trump nominee, you know, on the court would mean the end of Roe v. Wade. Justices sometimes surprise us. But that is the goal.

GREENE: And so what would happen if Roe were overturned or seriously eroded?

MCCAMMON: Well, then it would go back to the states, and state laws would take effect. Abortion rights opponents have been sort of downplaying the idea that this would mean the end of abortion, but reproductive rights advocates note that a lot of states already have laws on the books, some of them old, pre-Roe laws that could ban abortion in most or all cases if Roe were overturned.

GREENE: NPR's Sarah McCammon.

Sarah, thanks.

MCCAMMON: Thank you.

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