Roe v. Wade may not be on the chopping block, but Kennedy’s departure and Kavanaugh's appointment opens the door to carve away its legal protections.


Transition can be a delicate predicament.

With the retirement of Justice Anthony Kennedy and the nomination of Bett Kavanaugh by President Donald Trump to replace him, Americans are focused on changing the United States Supreme Court and the fate of Roe v. Wade. 

Kennedy's exit opens the door

The 1973 case guaranteed women’s right to legal abortion and has subsequently been upheld in cases, such as Maher v. Roe and Planned Parenthood v. Casey (1992). The latter drew the support of even Justice Kennedy, who affirmed the constitutional right to have an abortion and concurred that a provision of Pennsylvania law qualified as “undue burden.”

Kennedy helped develop the undue-burden standard that allows states latitude in regulating abortion. However, he played in the gray area when it came to cases dealing with reproductive rights and was known as a “swing vote,” which is why his retirement and the potential appointment of a pro-life justice has conservative activists giddy. 

Roe v. Wade may not be on the chopping block, but Kennedy’s departure opens the door to revisit this contentious decision and carve away at its legal protections for women.

It's about freedom, not just abortion

But it is not just abortion or women’s reproductive rights at stake.

In a time of political polarity and tribalism, it’s freedom that hangs in the balance. 

During the final presidential debate in 2016, then-candidate Trump said he would appoint pro-life justices. His response to the moderator’s question was vague, and he guardedly said that justices he appoints would allow the decision on abortion to "go back to the individual states."

On Monday night, Trump announced the appointment of Judge Kavanaugh, and as he said, he did not publicly ask him his stance on Roe v. Wade. 

Sen. Susan Collins toldThe New York Times it would be “inappropriate for a member of Congress, a member of the Senate, to ask” about a judge’s position on Roe v. Wade.

So, America waits to see if this issue was just campaign bait to hook the Republican base, or if it becomes a defining act in Trump’s presidency.

Over time, rights could be rolled back

Abortion is a difficult, contentious topic, and rightfully so. While 67 percent of American adults oppose the undoing of Roe, the number shows the debate continues, pitting personal liberty against sanctity of life.

One side of the spectrum delights at the thought of policy rollback, while the other fears social regression. 

Is the frenzy premature? Or could this happen? 

Unfortunately, the answer is yes.

The immediate and wholesale undoing of Roe is unlikely. Chief Justice John Roberts could decide to respect precedent and spare the country a legal earthquake.

Individual states already differ on restrictions, such as required ultrasounds or counseling or outlawing abortion past a particular stage. Court cases that are currently pending could thus be used to further attack abortion rights. 

Abortion is complicated, personal

The world has seen and can still see what happens when women’s reproductive rights are not their own. Some countries, such as Romania, have forced women to bear children, while others, such as China,have forced women to have abortions. In Latin America, three-quarters of all abortions are illegal.

A slow hollowing of Roe may not return the states to coat hangers and alleyways, but would push the nation backwards

This has consequences.

Abortion is ambiguous. It’s natural to feel conflicted, whether due to lifelong values or for lack of understanding and personal experience. 

But that’s the point. Abortion is also complicated by personal experience. Thus, each answer is personal. 

An abortion is not a simple decision. Anyone who naively states, “Well, it is for some people,” fails to understand the physical and emotional stress during the procedure and after it’s over. 

We've reached a moment of reckoning

You can believe abortion is wrong. That is your fundamental right. But for a nation founded on religious freedom, it is a contradiction for religion to impose its will on such a personal decision — on individual freedom.

Religions that hew to the inviolability of life condemn abortion. Yet are they not equally tied by the concept of moral burden?

If human will is the foundation of religious responsibility, surely freedom to make choices is paramount. 

Now is a moment of reckoning.

In America, the myriad of religious beliefs should not dictate for all what is a deeply personal decision.

Téa Francesca Price is a Pulliam Fellow for The Arizona Republic, where this column first appeared. Follow her on Twitter: @_tfprice.



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