One result of the announcement that Justice Anthony Kennedy will retire later this summer was that pro-life and pro-choice activists immediately agreed on something: Kennedy’s retirement could mean the end of Roe v. Wade.
Pro-life activists and other social conservatives were ecstatic on Wednesday. “This is the beginning of the end of abortion,” one tweeted, describing the day Roe v. Wade is overturned as “the day the womb is safe again.” “It is possible that Roe will be undone in my lifetime,” declared another Christian activist. “This could be the end of the horrific, immoral, and unjust 1973 Roe v Wade decision,” tweeted the founder of a pro-life group. Denny Burk, a professor at Boyce College and an influential blogger on conservative Christian issues, said in an email: “I cannot overstate the importance of this vacancy for the pro-life cause. … Overturning Roe is by no means a shoe-in, but it is possible with a new justice. It wasn’t possible with Kennedy.”
Pro-life groups quickly moved to capitalize on the vacancy. “Yesterday was a day we’ve been thinking about and planning for a number of years,” said Kristan Hawkins, the president of Students for Life of America. “This is what we’ve been talking about: making abortion illegal and making it unthinkable.” Her organization plans to mobilize in several states this summer to pressure senators into pledging to vote for Trump’s nominee. The Susan B. Anthony List, which rallied grass-roots support for Neil Gorsuch’s appointment to the court last year, told BuzzFeed News that it is ready to start mobilizing activists on the ground immediately.
Kennedy’s announcement came in the middle of what had already been an exciting week for anti-abortion activists. On Tuesday, the Supreme Court sided with California crisis-pregnancy centers in NIFLA v. Becerra, a case that centered on whether anti-abortion counseling centers had to provide clients with information about local abortion services.
For many years, state victories like that were all pro-life activists could hope to achieve. Although Kennedy often seemed conflicted about abortion itself—his opinions over the years have not cohered either morally or judicially—he did not seem likely to overturn Roe v. Wade, and social conservatives viewed him warily. “He, probably more than anyone else, has been responsible for ensconcing the sexual revolution in our legal traditions,” Burk said, referring to Kennedy’s role in the 1992 case Planned Parenthood v. Casey and as the author of the 2015 opinion that essentially legalized gay marriage nationwide. “I think he was on the wrong side of these momentous cases.”
With Roe essentially off the table because of the composition of the Supreme Court, pro-life activists turned toward chipping away at abortion rights and access on the state level. That strategy has been remarkably effective. According to the Guttmacher Institute, a research group that supports abortion rights, one-third of the 1,193 state restrictions on Roe have been enacted in the past seven years.
The opportunity to replace Kennedy with a firmly anti-abortion judge refocuses the pro-life battle back on the national stage. Kennedy’s retirement was a vindication of the strategy emphasized by many anti-abortion conservatives in the 2016 election: Hold your nose and vote for Trump, as Franklin Graham once urged, because “it’s the Supreme Court, stupid.” That trade-off was even sharper for pro-life activists. Trump described himself as “very pro-choice” as recently as 1999, and later joked with Howard Stern about having to be cajoled out of abortion after a partner’s surprise pregnancy. During the 2016 campaign, he pointedly refused to answer when Maureen Dowd asked him if he had ever been involved with someone who did get an abortion.
But the argument from pro-life groups has never been that Donald Trump, the man, values every human life. The argument was that he had surrounded himself with conservative pro-life advisers and that he would remake the Supreme Court in their image. During his campaign, he circulated a list of potential Supreme Court nominees that had been shaped by conservative groups including the Heritage Foundation. If he were elected, he vowed in a debate, overturning Roe “[would] happen, automatically.” Hawkins said she had many conversations with young pro-life activists during the 2016 campaign in which she reminded them that Trump had promised to appoint pro-life justices. “We are single-issue voters,” she said. “It comes down to the Supreme Court. We can argue about whether we personally like candidates, but at the end of the day, are they advancing our agenda to abolish abortion?”
As for what comes next, pro-life organizations are generally comfortable with anyone on Trump’s published list of nominees. Anticipating Kennedy’s retirement a few weeks ago, the activist group Secular Pro-Life launched a campaign arguing that the next nominee should be the court’s first anti-abortion woman. Trump’s list includes six women, and some conservative sentiment seems to be coalescing around Judge Amy Coney Barrett, an appeals court judge who has signaled her doubts about Roe in the past. During her confirmation hearing last fall, California Sen. Dianne Feinstein sneered at Barrett’s Catholic faith, saying, “Dogma lives loudly within you.” The attack became the right-wing equivalent of “Nevertheless, she persisted”: an insult that turns its target into a sympathetic, even heroic figure. Barrett is in her 40s, so she could sit on the court for decades. And having a pro-life woman on the court would be good for optics. “If Roe v. Wade is ever overturned,” Bloomberg columnist Ramesh Ponnuru wrote in a column endorsing Barrett on Thursday, “it would be better if it were not done by only male justices, with every female justice in dissent.”