Why It’s Impossible For Brett Kavanaugh To Make Abortion Illegal

Why It’s Impossible For Brett Kavanaugh To Make Abortion Illegal

Abortion activists responded quickly to Trump’s nomination of Judge Brett Kavanaugh to the Supreme Court on Monday night, pushing the false narrative that if confirmed, the Catholic jurist would criminalize abortion.

Here’s NARAL, declaring on Twitter that Kavanaugh would be “the fifth vote to overturn and gut Roe v. Wade, criminalize abortion and punish women.”

Former Planned Parenthood president Cecile Richards appeared on “Hardball” to proclaim “abortion existed before Roe and it was simply illegal and unsafe and young, healthy women died routinely in emergency rooms across this country and that’s what we’re looking at again if this court tips to the other side.”

In the coming days, the rhetoric will only escalate, as will the deception. So, let’s take a moment to correct the public record: Overturning Roe v. Wade will not criminalize abortion. Period.

Roe, and the currently controlling precedent Planned Parenthood v. Casey, created a federal constitutional right to abortion. Should Roe be overturned, the question of abortion, and any limits on abortions, would return to the states and in most cases the legislative branch. In some states, abortion would still be on-demand and paid for by the government. Other states will likely adopt restrictions overwhelmingly supported by the populace, such as a ban on late-term abortions or sex-selection abortions.  Some states may prohibit abortions following detection of a fetal heartbeat.

What Roe (and Casey) do is prevent the states and Americans from having a say in this important public policy debate, resulting in a regime so extreme that only six other nations in the world (Canada, China, Netherlands, North Korea, Singapore, and Vietnam) have as permissive abortions laws as the United States.

Abortion activists know overturning Roe will not criminalize abortion. In fact, they have been preparing for Roe’s eventual reversal for years by challenging state law based on a purported state constitutional right to abortion. Nearly ten years ago, the Center for Reproductive Rights announced this little-noticed strategy, stating: “Although claims that state constitutions provide greater protection than the federal constitution are not always successful, this strategy remains an important tool for securing reproductive rights in many states, and may become even more important given the uncertainty over whether the U.S. Supreme Court will continue to weaken the protections afforded by the federal constitution.”

This strategy has succeeded: “According to NARAL Pro-Choice America, ‘15 states’ constitutions provide greater protection of a woman’s right to choose than does the federal constitution.’” And Kansas is poised to become the sixteenth state, as the liberally-stacked state supreme court is widely-expected to invent a state constitutional right to abortion in a case challenging Kansas’ live dismemberment abortion ban.

Yet, expect abortion activists to repeat the lie that Kavanaugh will criminalize abortion. And expect the mainstream media to keep quiet about this fraud.

Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and current adjunct instructor at the college of business at the University of Notre Dame. The views expressed here are those of Cleveland in her private capacity.
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