With Brett Kavanaugh’s Confirmation, Roe v. Wade Could Be Doomed: Here Are 5 Ways to Prepare

When Sen. Susan Collins announced, on October 5, that she would be voting in favor of Brett M. Kavanaugh’s confirmation to the U.S. Supreme Court, the Maine Republican tried to assure defenders of abortion rights that President Donald Trump’s nominee considered Roe v. Wade “settled law.” But painting Kavanaugh as pro-choice ignores the fact that the Christian Right rallied around his nomination and that Trump was specifically looking for far-right culture warriors who shared the “strict constructionist” or “originalist” views of Justice Clarence Thomas and Antonin Scalia (who died in 2016). In the 1990s and 2000s, Thomas and Scalia were icons of the Christian Right and often butted heads with the more libertarian Justice Anthony Kennedy when it came to abortion and gay rights—and with Kavanaugh having replaced Kennedy, the overturn of Roe v. Wade is likely. 
 
The Christian Right finally has the votes needed to overturned that 1973 ruling, which in effect, legalized abortion throughout the United States. And if Roe is overturned, it will probably be a 5-4 decision with Kavanaugh, Thomas, Neil Gorsuch (Trump’s first High Court appointee), Samuel Alito and Chief Justice John Roberts in the majority and pro-choice dissent from two Bill Clinton nominees (Ruth Bader Ginsburg and Stephen Breyer) and two Barack Obama nominees (Sonia Sotomayor and Elena Kagan). Abortion rights defenders need to prepare for the very strong possibility that a few years from now, abortion could be illegal in big chunks of the U.S.

Here are five things that abortion rights defenders can do to “brace for impact” and lessen the pain that will come with life after Roe v. Wade.

1. Elect As Many Pro-Choice Lawmakers As Possible to the U.S. Senate and the House of Representatives

Overturning Roe v. Wade would not automatically mean a nationwide abortion ban; rather, the legality or illegality of abortion would be decided on a state-by-state basis post-Roe. In order for the Christian Right to outlaw abortion nationally in a post-Roe environment, Republicans would need to pass a ban in both the House of Representatives and the Senate—and President Trump would need to sign it into law. Therefore, it will be crucial for abortion rights defenders to elect as many pro-choice candidates to Congress as possible, starting with the 2018 midterms. Even if abortion becomes illegal in Republican-dominated states like Alabama, Mississippi, Louisiana, Utah and Texas, having a pro-choice majority in Congress could prevent it from becoming illegal in all 50 states.

2. Elect As Many Pro-Choice Lawmakers As Possible at the State Level

Post-Roe, access to legal abortion could vary wildly from state to state. Some Democrat-dominated states have abortion rights protections in their constitutions, while some Republican-dominated states have trigger laws that would automatically criminalize abortion were Roe v. Wade overturned. Planned Parenthood has reported that at least 20 states are ready to outlaw abortion if Roe’s protections are ended. This will mean that abortion rights defenders will not only need a pro-choice majority in Congress—they will need to make abortion rights a litmus test at the state level, only electing governors and state lawmakers who support safe and legal abortion. And post Roe v. Wade, swing states like Pennsylvania, Nevada and Florida could become major battlegrounds for abortion rights. 

3. Figure Out Ways to Help Women Living in States Where Abortion Becomes Illegal

In a post-Roe environment, crossing a state line could easily mean the difference between having access to safe and legal abortion or not having it. One might see a scenario in which, for example, abortion is illegal statewide in Texas but women living in El Paso could cross the state line into New Mexico and have a legal abortion in Albuquerque. And abortion rights activists, working with organizations like Planned Parenthood and the National Abortion Rights Action League (NARAL), will need to find state-by-state coping strategies post-Roe. This will be easier in New England or on the West Coast than it will be in the Bible Belt, where anti-choice states will likely be next to other anti-choice states.  

4. Mobilize Female Voters and Maximize Pro-Choice Turnout

Liberals and progressives are at a much greater disadvantage in the U.S. than they are in Europe because in the U.S., the Republican Party is so effective when it comes to driving voter turnout—and all too often, those who show up on Election Day are white, male, ultra-conservative and over 60. This has to change. Abortion rights defenders will need to drive female voter participation as aggressively as possible, and a good place to start would be the 2018 midterms.

5. Network With Veteran Feminists Who Remember Life Before Roe v. Wade

Abortion rights defenders born in the 1980s and 1990s are too young to have experienced life before Roe v. Wade, but veteran second-wave feminists like Gloria Steinem (now 84) and Gloria Allred (now 77) remember the bad old days all too well—which is why they have been fighting so hard to protect abortion rights all these years. And having experienced the pre-Roe era first hand, older feminists can be a valuable source of knowledge in the dark months ahead.

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