Roe v. Kavanaugh

Laura Beers

Last month, President Trump announced his nominee to succeed the retiring Supreme Court justice Anthony Kennedy. Brett Kavanaugh is currently a judge on the DC Circuit Court of Appeals. He has not been an outspoken opponent of Roe v. Wade, the 1973 Supreme Court decision that the right to privacy under the Due Process Clause of the 14th Amendment extended to a woman’s choice to have an abortion. But he is almost certain to support a dramatic narrowing of Roe’s application, allowing states to impose significant restrictions on a woman’s ability to access abortion.

Last year Kavanaugh issued a dissenting opinion to a 6-3 decision by the DC Court of Appeals which ruled that a 17-year-old undocumented immigrant could be temporarily released from detention in order to have an abortion. Kavanaugh argued that the young woman did not have a right to ‘abortion on demand’, and that the majority had ignored the government’s ‘permissible interests in favouring foetal life, protecting the best interests of a minor, and refraining from facilitating abortion’. Kavanaugh may not be prepared to overturn Roe outright (although it would be premature to assume that he wouldn’t do so). He has, however, given a clear indication that he would interpret a woman’s right to access abortion without interference from the state as narrowly as possible.

I was born in the late 1970s and grew up in Maryland, a state that last elected a Republican senator in 1980. Before moving to the UK, I lived my entire American life in jurisdictions where abortion was comparatively unrestricted and covered by both Medicaid and private insurance. I always knew that this privilege wasn’t shared by women across the country. Laws requiring that the parents of teenage girls be informed if their daughter is seeking an abortion, long waiting times, a shortage of clinics, lack of access to Planned Parenthood facilities, lack of insurance coverage, and increasing restrictions on how late an abortion can be performed, all make abortion an extremely difficult if not impossible option for many American women.

A few years ago, living in Britain, I found out that I was pregnant with a very much wanted baby. We had had a difficult time conceiving and had lost a previous pregnancy. I went to a private clinic at 10 weeks to have an early ultrasound and a non-invasive prenatal test (NIPT) which analyses fragments of foetal DNA in the maternal blood for Down Syndrome and other chromosomal conditions. I heard the heartbeat and saw the foetus move. The lab called a week later to give me the all clear from the NIPT test. They also let me know that they could tell me the sex of the baby. He was a boy. We told our three-year-old that he was going to have a brother.

Then, at the end of the first trimester, we went for our first NHS ultrasound, only to discover that the baby had a developmental anomaly. It wasn’t necessarily fatal, but it meant that he had only a 50 per cent change of surviving the pregnancy and, if he did survive, was unlikely to live past the age of four, in a life that would be spent in and out of hospital. The doctors suggested I consider termination, and let me know that, given the medical circumstances, they could authorise it up to the delivery date. Either way they would support me, but ultimately the decision was mine alone to make.

We already had a child, and a complicated two-academic commuter marriage, and I knew in my heart that it would be insane to go ahead with the pregnancy. Never mind the practicalities of managing life when and if the baby was born; I couldn’t get as far as envisaging what I would tell my son if his brother died in utero at 34 weeks. Even so, coming to terms with the decision was the most difficult thing I have ever done. We consulted specialists at a hospital in Leeds, and I had heart-wrenching phone conversations with the prenatal surgery unit at Johns Hopkins in Maryland. I read countless medical journals in a vain search for a story of a child with my baby’s condition going on to live a normal life. In the end, I made the impossible but inevitable decision and terminated the pregnancy. We all still think about the baby. Our son, now six, still occasionally talks about ‘the baby who didn’t come out’, but I know that it was the right decision for all of us. It was also a decision that only I, and my family, could or should have been involved in making.

As an American married to an Englishman, we spend an unhealthy amount of time tallying up the pluses and minuses of life in Britain versus life in America: ‘Trump is worse than Brexit’; ‘But Trump will eventually be gone and leaving the EU is permanent.’ Trump will leave office in, at most, six and a half years, but he’ll have left a legacy on the Supreme Court that can’t easily be undone. The right of British women to make extremely difficult decisions about their bodies, their families and their futures without undue interference from the state already barely exists for many Americans. If Kavanaugh is confirmed, it may well cease to exist for millions more.


  • 10 August 2018 at 3:54pm
    Peterson_the man with no name says:
    I've never been able to take American spats over Supreme Court nominations entirely seriously; it seems that the Court is always one new justice away from either reinstituting witch-burning or making gay sex compulsory for three-year-olds, depending on which side's propaganda you happen to be reading. It's part of the apocalyptic mindset that infects so much of our pundit class, by which the next big event - whether an election, a referendum, or the naming of a Supreme Court judge - is always the one that will decide the fate of the nation for generations to come. The reality, of course, is that Supreme Court judges will carry on dying or retiring, and future presidents of whatever party will carry on replacing them. But that's too dull, isn't it?

    • 14 August 2018 at 2:02pm
      Bill Gilmour says: @ Peterson_the man with no name
      "the Court is always one new justice away from either reinstituting witch-burning or making gay sex compulsory for three-year-olds". Do you have a source for that or are you the one who is exaggerating a very real problem.

    • 14 August 2018 at 6:25pm
      jcircosta says: @ Peterson_the man with no name
      It must feel nice indeed to take such a sanguine, if not flippant, attitude toward something that can, and has, had real and often detrimental affects on real human lives: Plessy, Citizens United, and of course, the disgraceful decision on Bush v Gore which eventually led to incredible human and monetary loss. One reason so many Americans get so agitated over SCOTUS nominations is because they actually understand what’s at stake. It’s the height of cynicism to express the attitude that SC choices are like nothing more than the weather- we have only to wait a bit and things will change to be more to our liking. Not only not helpful but insulting (just ask any black American whose ancestors waited and who themselves now wait only to find that justice delayed is justice denied).

    • 17 August 2018 at 6:13pm
      tigran says: @ Peterson_the man with no name
      Yes. Fah too Dahl dahling for the poor fools whose lives a wooined or taken outwight twixt confirmation and death. The “Ephors” of America is a bad idea from the get go, or at the very least from the early 20th century, when notions of a superior class of human making sure the rest of us didn’t destroy ourselves has waned. Though apparently not everywhere.

  • 13 August 2018 at 1:38am
    Quebec Scot says:
    Tend to agree Peterson but... Bush vs Gore? Because the Supreme Court stopped a vote count we didn't get the guy that was really serious about climate change but instead 'the shrub' - Iraq war, etc. Plus A. Scalia's very eccentric approach to the punctuation/syntax of the 2nd amendment turning on the spigot for 'guns for all'. Then of course Citizens United... the fate of a nation might just be in there somewhere.

  • 14 August 2018 at 2:29pm
    hag says:
    Much of the opposition to the right-wing presidents of the recent past has been due to style rather than substance.
    From the aw-shucks folksiness of Reagan to the astounding verbiage of Alfred E Bush and now the redneck noodling of Trump...; but how much have these twits ultimately changed the course of history, or the lives of ordinary citizens at home or abroad, as opposed to Slick Willy or Uncle Tom Obama?

    Unfortunately the Supreme Court make-up does matter a bit more than what puppet occupies the oval office.

  • 14 August 2018 at 3:58pm
    deadsparrow says:
    When I moved to the United States as a teenager, in the LBJ era, I was astounded at the almost rabid enthusiasm people showed for whichever politician they were supporting at whatever election level was occurring. We saw what that typically looks like with the 'Make America Great Again' crowds at Trump rallies two years ago. Clinton had them too but far fewer of them.

    Americans love and celebrate their politicians, unlike the British who detest them but, mulishly, continue to vote them in year after year. Americans also respect their high government officials such as those who make up the Supreme Court. The decisions of the Court are rigidly enforced in the US and its political composition matters a great deal. Without a socially progressive majority, school integration - as just one example - would not have been attempted. Reverses can also occur as has happened with the 'Bush court.'

    • 15 August 2018 at 9:14am
      hag says: @ deadsparrow
      I find the US party-partisanship in the media remarkable.

      Watching Trevor Noah or Bill Maher, the tendency to vilify everything about the opposition, including their accents, hair and facial ticks, is often tedious and embarrassing.
      Even the excellent John Oliver often falls for that.

      Is this consumer-driven?

  • 18 August 2018 at 2:50pm
    Michael Wells says:
    Thank you for sharing what must be a painful experience.

Read more