Even before Supreme Court Justice’s Anthony Kennedy’s retirement and President Donald Trump’s nomination of Brett Kavanaugh to replace him, abortion rights advocates were already concerned about the erosion of those rights in America. The prospect of Kavanaugh on the bench — and his and the president’s past positioning on abortion — have raised the alarm over reproductive rights in the United States and the future of Roe v. Wade to a new level.
Activists are ready for battle.
“When women fight for abortion rights, we’re fighting for everyone’s rights to individual liberty and to have the capacity to determine our most fundamental decisions that define our lives,” Ilyse Hogue, president of NARAL Pro-Choice America, the largest abortion rights advocacy group in the US, told me.
Hogue and NARAL have brought together the People’s Defense, a coalition of more than a dozen grassroots groups dedicated to resisting Kavanaugh’s confirmation. The group was originally formed to resist Neil Gorsuch’s Supreme Court nomination in 2017. This time around, they’ve hosted dozens of events around the country to urge lawmakers to vote no on Kavanaugh. They’re planning a national day of action, “Unite for Justice,” alongside MoveOn.org, Color of Change, and other activist organizations to protest Trump’s most recent Supreme Court pick.
They have an uphill battle. Republicans have a slim 51-49 majority in the Senate, so assuming Democrats all vote against Kavanaugh (which they might not), the vote largely hinges on two moderate Republican women: Sen. Susan Collins of Maine and Sen. Lisa Murkowski of Alaska. Both are playing their cards close to their chest.
I spoke with Hogue from NARAL recently about how her organization and others plan to resist Kavanaugh’s nomination and sway lawmakers. We also discussed what voters concerned about abortion rights should be paying attention to beyond the Supreme Court (Hint: check your state laws) and the case for why safe, legal abortion should be accessible throughout the United States.
She was emphatic about the importance of having abortion rights in the public discourse and the fact that a majority of Americans don’t want to see Roe v. Wade overturned. “The jury is completely in, and the vast majority of Americans want legal access to abortion,” Hogue said.
This interview, below, has been lightly edited and condensed for clarity.
So going back to the day Anthony Kennedy announced his retirement, what was your plan of action, your first step? I imagine you had been preparing for the possibility of a fight over another Supreme Court seat.
I think we had a couple of first steps — first, to remind people of Donald Trump’s litmus test to criminalize abortion and punish women. That was something he had promised all along in his campaign he was going to do, so that was the baseline from which we were operating.
But also to reconstitute and pull together the People’s Defense Coalition, which had been a coalition of over a dozen groups that had worked to fight Neil Gorsuch’s nomination together to make sure that we had an action plan and that we were all in coordination and unified about how crucial this moment is. And we are. The coalition has only grown since Kennedy retired and Kavanaugh was named. We wanted to be on the same page the next day, reminding every senator that this is the most consequential vote they will ever take in their entire career.
You all have said that you would oppose anyone Trump nominates, because of his comments on the campaign trail. What, specifically, are your concerns with Kavanaugh?
We certainly had done extensive research into the entire list [of Trump’s potential Supreme Court nominees] when the list came out and in preparation for Gorsuch. While we knew we were going to have to remind people of Donald Trump’s litmus test — we were going to assume that every single person on the list met that litmus test — what we didn’t know is that in Donald Trump’s decision, we were actually going to have an easier time than we would have with some of the others who have [gone to] greater pains to hide their records on abortion rights and on a whole host of issues Americans care about.
Starting with the things that we focus the most on, we are extremely concerned about some of the dissents that he wrote on the DC circuit court, starting with his dissent in the very, very publicized Jane Doe case in 2017, where the Trump administration was holding an undocumented woman in detention rather than releasing her to get the abortion that she needed and requested. The circuit court that Judge Kavanaugh sits on, in fact, ruled that she needed to be released to get the abortion. Judge Kavanaugh wrote a strongly worded dissent saying she should be kept in detention and not allowed to get an abortion.
That’s about as clear a case as you almost ever get from a Supreme Court nominee.
Beyond that, he’s written very hot dissents in the contraception mandate case over ObamaCare. It’s not just abortion that we’re concerned with him on. We also know about the connections between Roe v. Wade and and Griswold v. Connecticut, which allowed access to contraception to women. From a jurisprudence perspective, those two cases are very interconnected. And his dissent on Jane Doe and his dissent in the contraception mandate case make us really believe that he is actually quite hostile to all reproductive freedoms.
Then, you dig a little deeper, and shortly after his nomination, a speech surfaced where he praised former Supreme Court Justice William Rehnquist’s dissent in Roe, basically saying that Rehnquist was right to dissent in Roe.
So, I don’t think that we need any more evidence that he will be the fifth vote to end Roe and criminalize abortion and punish women.
Because we also are Americans who believe that democracy is instrumental to our country functioning and all of the things that we care about in terms of freedom, we are very, very worried about his record on and statements on the independent judiciary. It’s come out that he believes the president is above the law, that he thought US v. Nixon was decided wrong, that he could be the nail in the coffin of the independent counsel, all things that are an umbrella question to everything we all work on. The entire way that we believe that we make progress in this country has to do with three independent branches of government, and Kavanaugh doesn’t seem like he’s going to be that.
How do you plan to fight his confirmation?
We’re already seeing an enormous amount of energy in fighting it, and it’s in the tried-and-true way of people lobbying their senators. Right now, people are just simply reminding their senators that senators work for the American people, not for the president or for the majority leader, and the majority of Americans right now actually don’t like this guy and don’t want him confirmed.
We’ve seen that energy. In the first two weeks after Kavanaugh was named, we, along with our coalition partners, had 107 events around the country at senate offices and in cities and towns around the country. We’ve seen lobbying visits. We’ve seen calls pouring into senate offices. Sen. Bill Nelson (D-FL) publicly said that in Florida he received 2,000 calls and only 275 asking him to confirm. So I think we’re seeing a massively activated grassroots.
We saw impact of our collective efforts to remind the public of how dangerous this guy is and of our collective members being active in the polls that have come out over the last week, including the Quinnipiac poll that show that more Americans want him blocked than want him confirmed [by a 41-40 percent split]. We’re going to continue seeing that steady drumbeat of action through hearings on the final vote.
And we’re working with 30 different partners around the country to do an August 26, 50-state day of action, specifically directed at senators who will be home at the time to listen to their constituents, asking them to vote no on Kavanaugh. We think we’re going to have a lot of activity around that.
And, then, I think more and more is going to come out about this guy. The reason Senate Majority Leader Mitch McConnell (R-KY) [reportedly] said that he didn’t want him is because he’s got a track record a mile long. The more that comes out about this guy, the more people are going to become suspicious and think that the risks outweigh the benefits and get activated and join the already tens of thousands of folks who are engaged in getting senators to vote no.
Let’s say this doesn’t work, that Kavanaugh is confirmed. What will you do, and what can women and men who are concerned about abortion and reproductive rights do? What’s the next step if Kavanaugh is on the bench?
First of all, we really believe that this is going to hold. It is one vote. It is simply one vote that needs to flip. We were told it was impossible on healthcare and we did it. History has been shaped by people refusing to listen to people telling them that progress isn’t possible, so I want to preface this by saying we believe this is winnable and we’re putting everything we have into it.
At the same time, what you’re saying is part of what winning looks like, which is that we are working to make sure that all Americans are aware of what their status in their states are if Roe is gutted.
We worked with Massachusetts folks, and Gov. Charlie Baker on Friday signed a bill that takes pre-Roe criminalization laws off the books. Even in Massachusetts, even in blue, blue Massachusetts, there were laws on the books that made abortion a criminal act and punishable. Now people are so anxious and aware that it’s so obvious that this vote is the one on Roe that they’re looking to their governors and state legislatures, and a lot of people don’t like what they’re learning. A lot of people don’t know how in jeopardy they are, and so that’s part of what we’re doing.
We’re making this an issue for voters in November. We do actually think that most people very much care about how their senators vote on this. And it’s not just their senators, they want to know that every single elected official that they’re voting for is going to support abortion rights and their fundamental reproductive freedoms.
The Wall Street Journal/NBC News poll that came out recently showed that by a factor of two, more voters say they’ll vote for someone who is pro-choice than they’ll vote for someone who is anti-choice.
So we’re making this an election issue. We’re making it an election issue in the Senate, we’re making it an election issue in the House, and certainly for governors, who will hold the keys if Roe is upended.
If Roe is reversed, what happens? There are trigger laws in some states that could immediately ban abortion?
There are trigger laws, which literally are laws that say the day Roe ends, abortion is criminalized. But there are far more states than that that would have the same impact within a matter of days or weeks.
We’re looking at well more than half the country becoming in immediate peril if Roe is ended. You’re going to have weird little islands of access that, honestly, only people of means will be able to get to. And if you talk to my grandma, she’ll tell you that’s the way it always was pre-Roe: Women who had money could get what they needed, and women who didn’t risked their lives.
It’s also important to understand that it’s a much uglier and crueler environment that it was pre-Roe, and that’s true in our country writ large. The greatest risk to women pre-Roe was back-alley abortions. That remains a risk, no doubt, but really what we’re seeing is a move towards laws that actually punish women.
We have women already, even with Roe, in hostile states that have gone to jail for self-induced abortion. And we’ve got 20 state legislators in Ohio who’ve signed onto law that would make abortion punishable by execution.
The punishing women part that Trump talked about is becoming real in very profound ways.
So I sometimes feel like in the current debate, it’s easy to get bogged down in the politics of Roe v. Wade, the Supreme Court battle, the votes. And I wonder if you can just talk a little bit about the case for abortion and reproductive rights, why this is a fight worth having.
Abortion rights are, first and foremost, crucial because if women don’t have access to the tools by which we decide the most fundamental decision, which is how and when and with whom we have children, everything else fades from view. We know that women who are not able to plan their families successfully have less access to education, stay with partners who abuse them, have less professional advancement and less economic security.
You have to remember that the majority of women seeking abortions are moms already trying to take care of the families that they have, and so families suffer. And that’s a fundamental picture that people need to remember.
Beyond that, Roe itself has become somewhat of a proxy for women’s equality. We never got the Equal Rights Amendment passed, and so Roe is the only thing that we have that demonstrates the constitutional respect for women to be fully considered equal enough to control our own lives and our own destiny. That is very profound for people. That’s very real for people, as far as I can tell, and from what I hear from all over the country.
And then the third piece, which is really important, and people forget this: Roe itself was brought because a woman wanted an abortion, but the protections in Roe are much broader than abortion. A government that can deny you an abortion can force you to get an abortion. A government that can deny you an abortion can force you to get sterilized.
This is really fundamentally a question of what a government can force an individual to do that right now we have said is a personal, private decision protected by the Constitution.
Abortion rights have always been the tip of the spear. When women fight for abortion rights, we’re fighting for everyone’s rights to individual liberty and to have the capacity to determine our most fundamental decisions that define our lives.
As we’re having this discussion about abortion rights in the US right now, and losing abortion rights seems like a real risk here, what’s also happening is that other, historically more conservative places in the world are moving in a different direction. Ireland repealed its abortion ban, votes are being taken in Argentina to decriminalize abortion. What do you make of the juxtaposition?
On Ireland, one thing that I always note for people is that if the US had the mechanism that Ireland has for a straight-to-the-people referendum — that was what repealed their abortion law — we would win in a heartbeat. There is so much public support.
The new WSJ/NBC poll shows that 52 percent of Republicans support legal access to abortion and 76 percent of independents. The jury is completely in, and the vast majority of Americans want legal access to abortion.
We don’t have a national referendum tool like Ireland does. We have a representative democracy where we litigate this stuff through the people that we elect.
One of things that we know, which is really changing right now, is that the vast majority of people — not all of them, but the vast majority — who vote badly on restricting abortion and restricting access to contraception do not go home and campaign on it. They just don’t, because they know it’s wildly unpopular.
It’s the same reason you’re getting all of this static from the right wing right now with Kavanaugh and people saying, “No one’s going after Roe. What? Us? Go after Roe?” Which is, of course, the only thing they’ve wanted for 40 years. All of a sudden, we’re supposed to believe them that they don’t want it anymore, and that’s because they know how unpopular it is.
Politicians don’t go home and talk about it, and most people aren’t paying really close attention because you don’t know the status of the state’s restrictions unless you need an abortion. And so they’re voting out of line, and we’re saying enough with that. We’re going to put these records in front of people.
There is no question that a very small and very outside-the-mainstream minority has coopted the Republican Party. This was not a partisan issue even as recently as the late 1970s. The first state to liberalize abortion in 1967 pre-Roe was Colorado under Republican Governor John Love. This was considered a basic issue of human rights and, certainly for Republicans, a libertarian one.
There has been a slow-creep takeover of the Republican Party by a very small and very extreme minority who has very stealthily passed laws and had to go to fairly extreme measures to do so.
I’m from Texas, and we talk about the moment that made Wendy Davis famous, and I have to remind people that even in the state of Texas, the Republicans had to go into a third special session that changed the rules of how that law got passed in order to pass it, in order to jam it through. And that’s in the reddest of the red states. They’ve done this in the dark of night, like they did with the Iowa six-week ban bill.
They do it in secret to please a very extreme base, or because some of these people are from the very extreme base, like Vice President Mike Pence. But then they don’t talk about it, and we’re going to make them talk about it, because it’s all on the line right now.