What Happens in the November Elections Could Mean the Difference Between Outlawing Abortion in Some States and Outlawing It Nationwide

If Judge Brett Kavanaugh, President Donald Trump’s nominee to replace Justice Anthony Kennedy on the U.S. Supreme Court, is confirmed by the Republican-controlled Senate—and most likely, he will be—it probably won’t be long before the High Court overturns Roe v. Wade, the landmark 1973 right-to-privacy decision that, in effect, made abortion legal in all 50 states. The end of Roe would not automatically mean a nationwide ban on abortion; rather, the legality or illegality of abortion would be determined on a state-by-state basis. But here’s where it gets even worse: post-Roe, Republicans in Congress would be free to pass a bill calling for abortion to be banned throughout the U.S.—and Trump would no doubt sign it into law. It remains to be seen what will happen in the November midterms, but the way things are shaping up, the events of November 6, 2018 could very well mean the difference between abortion becoming illegal in certain states and abortion becoming illegal throughout the entire country—which is the Christian Right’s ultimate goal.

Democrats are hoping to regain both the U.S. Senate and the U.S. House of Representatives on November 6, and they only need to control one of the two to prevent a nationwide abortion ban. In a post-Roe v. Wade scenario, Republicans would be free to introduce all the anti-abortion bills they wanted in the Senate or the House—but both houses of Congress would have to reach a mutual agreement in order for a bill outlawing abortion nationwide to make it to President Trump’s desk to sign. And if Democrats retake either the Senate or the House, they would have the votes to defeat such a bill. A Democratic majority in either the House or the Senate won’t prevent the U.S. Supreme Court from overturning Roe v. Wade if Kavanaugh is confirmed, but it could at least prevent abortion from being outlawed in all 50 states.

Democrats have some heavy lifting to do if they are going to regain the House and even heavier lifting if they are going to regain the Senate. All 435 seats in the House are up for grabs in November, and Democrats would have to flip at least 24 seats presently held by Republicans in order to take control. When Democrats regained the House in the 2006 midterms, they picked up 31 seats.

The math is tougher for Democrats in the Senate, where they would need to maintain all the seats they presently hold and flip at least two Republican-held seats in order to achieve a majority—and one of the seats they are hoping to recapture is the one held by incumbent Republican Sen. Dean Heller. In Nevada, Heller is competing with Democratic nominee Jacky Rosen, and so far, polls have showed them to be pretty much neck and neck. Heller is the only Republican who is defending a Senate seat in a state that Democrat Hillary Clinton won in the 2016 presidential election—and he is considered the most vulnerable GOP incumbent in the Senate.

Some abortion rights defenders are hoping that if Kavanaugh is confirmed to the Supreme Court, he might surprise them by not voting to overturn Roe v. Wade. But that’s most unlikely given his “strict constructionist” ideology. Like Trump’s first Supreme Court nominee, Neil Gorsuch, Kavanaugh is a severe social conservative along the lines of Justice Clarence Thomas and the late Antonin Scalia. And a 5-4 vote to overturn Roe v. Wade would probably come down along these lines: Kavanaugh would join Gorsuch, Thomas, Samuel Alito and Chief Justice John Roberts in ruling that Roe was wrongly decided and a violation of states’ rights, while two Bill Clinton appointees (Ruth Bader Ginsburg and Stephen G. Breyer) and two Barack Obama appointees (Sonia Sotomayor and Elena Kagan) would be the four dissenters.

Abortion rights groups, in light of Kavanaugh’s nomination, have been preparing for the likelihood of a post-Roe v. Wade U.S.—and the Center’s website includes an informative page called “What If Roe Fell?,” which offers a state-by-state analysis of what the U.S. would look like post-Roe. The page breaks all 50 states down into having a high, low or medium risk of abortion being outlawed should Roe be overturned. And as the page demonstrates, a post-Roe America could be one in which abortion remained legal in California, Vermont, Oregon, New Jersey, Delaware and Massachusetts while becoming illegal in Texas, Kansas, Oklahoma, Utah and Mississippi.

The Center puts Pennsylvania and Colorado, both swing states, in the medium risk category. So, if Republicans in Pennsylvania’s state legislature in Harrisburg voted, post-Roe, to outlaw abortion, it’s quite possible that women suffering unplanned pregnancies in Philadelphia, for example, would be crossing the state line and heading to nearby New Jersey or Delaware for abortions.  

According to Amy Myrick—staff attorney or the Center for Reproductive Rights—22 states would be likely to ban abortion without Roe. In fact, Louisiana, Mississippi and the Dakotas have “trigger laws” that would automatically ban abortion statewide if Roe v. Wade were overturned. But nine states, on the other hand, have laws that explicitly protect abortion rights at the state level—including California, Connecticut, Delaware, Washington, Maine, Nevada, Oregon, Hawaii and Maryland. And in those states, the laws are designed to protect abortion rights even if Roe v. Wade is overturned.

However, the Christian Right would never be satisfied with abolishing legal abortion in only some of the states. They want to abolish it from the U.S. altogether. And to add to the pain, it’s entirely possible that with Kavanaugh on the Supreme Court, 1965’s Griswold v. Connecticut ruling could be overturned along with Roe v. Wade.

In Griswold v. Connecticut, the Supreme Court under Chief Justice Earl Warren struck down a Connecticut law that prohibited the sale of contraceptives to married couples. And if the Supreme Court were to rule that Griswold was wrongly decided and that it violated states’ rights, individual states would be free to illegalize birth control. In fact, far-right wingnut radio host/author Mark R. Levin believes that Griswold was wrongly decided and that the right-to-privacy concept used in Griswold v. Connecticut, Roe v. Wade and other Supreme Court decisions has “no constitutional basis and no tangible form.”

Abortion rights defenders often describe the end of Roe v. Wade as a worst-case scenario for abortion rights in the U.S., but it’s actually a next-to-worst-case scenario. The worst-case scenario would be the overturning of Roe followed by a Republican-controlled Congress voting to outlaw abortion nationwide. And if Kavanaugh is confirmed and Democrats are unable to regain either the House of Representatives or the Senate on November 6, that worst-case scenario just might become a reality.