Roe v. Kavanaugh
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.