The steady erosion of abortion rights in the United States has been nothing if not subtle; through the last decade, a certain kind of restraint has generally been rewarded in the anti-abortion movement. Sweeping bans—at 15 weeks, sometimes earlier—tend to fail for being unconstitutional on their face. But waiting periods, counseling requirements, insurance restrictions, and prohibitions on public funding that add time and considerable expense to the procedure continue to obstruct access across the country. The strategy has been straightforward enough: it’s better to whisper than to shout.
The same is true of Supreme Court justices, and so Brett Kavanaugh repeated, during the second day of his confirmation hearing, that he viewed Roe v. Wade as “important precedent” that had been reaffirmed over many decades. “I said that it’s settled as a precedent of the Supreme Court and entitled the respect under principles of stare decisis,” Kavanaugh said in response to a question from Dianne Feinstein. “I understand the importance the people attach to the Roe v. Wade decision,” he continued. “I don’t live in a bubble. I live in the real world.”
John Roberts, the court’s deeply conservative chief justice, said a version of the same thing during his own confirmation hearing in 2005. Roberts then went on to vote with a majority to uphold a ban on a method of abortion used to terminate pregnancies after 12 weeks. He would also become a dissenting vote in a case striking down a Texas law that threatened to shutter half the clinics in that state. Roe was settled law then too, but there we were all the same with an ever-narrowing set of options for accessing basic reproductive healthcare.
Calling Roe settled law isn’t saying much about the current state of abortion rights, which is probably why these men were willing to say it. But Planned Parenthood v. Casey is settled law, too. During the hearing, Kavanaugh described Casey as “precedent on precedent,” framing it mostly as an affirmation of Roe. What he left out—and the part that matters—is that Casey is the ruling that made the slow, drowning drip of state-level restrictions possible. The increasingly creative and punishing laws that states have used to preserve access in name only are what they are today because of Casey.
the real threat of Kavanaugh is the guarantee that the current system will continue to run just as it has been. That the right to an abortion will become more and more of a political abstraction for more and more people
It’s true that, if confirmed, Kavanaugh may find himself with an opportunity to overturn Roe, but it is just as possible—subtler, even—that abortion rights will continue to die their quiet death before any case taking on the landmark ruling reaches the bench. In this scenario, the real threat of Kavanaugh is the guarantee that the current system will continue to run just as it has been. That the right to an abortion will become more and more of a political abstraction for more and more people.
For most people, who are for most of their lives not pregnant, the difficulty of accessing an abortion when you need it can sometimes come as a surprise. That’s how these things work. It is also a consequence of living in a media, public polling, and political landscape in which the question of reproductive justice often seems to begin and end with a single court case even though abortion laws, in practice, have little to do with the right affirmed in Roe.
So a 17-year-0ld in Alabama might be surprised that she can’t terminate a pregnancy without the consent of a guardian or the permission of a judge. She might be surprised to hear that she is lucky—or at least this is how she will have her circumstances described to her—because she is early enough in her pregnancy to wait out her 18th birthday and have the procedure performed legally at the clinic closest to her home.
A 22-year-old might be surprised that her Medicaid doesn’t cover abortion. She might feel surprised, or a kind of numb shock, that she will have to carry an unwanted pregnancy to term and raise another child.
A 35-year-old in New York might be surprised that she will have to travel outside one of the most progressive states in the country in order to terminate a non-viable pregnancy at 32 weeks: “I was shocked too, for some reason, when he told me. I thought, ‘We live in New York, this is crazy.’”
This is the legal space that Kavanaugh currently inhabits: in a recent case, he tried to block an undocumented teenager in state custody from having the abortion she was seeking. This is what Roe as settled precedent looks like.
While stigma and threats of violence have made accessing the procedure a more difficult, frightening undertaking, it has been the insurance restrictions, age limits, red tape, waiting periods, and the financial and time burden of multiple visits that have been the real killers when it comes to bodily autonomy. These are the real, mundane, layered obstacles—often directly targeting low-income women and women of color—that stand between Roe and a staggering number of pregnant people in this country.
There are more of these cases coming to the Supreme Court. Kavanaugh, if confirmed, will be ready for them.