Kennedy's retirement could mean new attack on legal abortion

President Donald Trump has long vowed to nominate Supreme Court justices who would work to overturn Roe vs. Wade, the landmark 1973 ruling that legalized abortion nationwide.

He now has his chance.

The retirement of Justice Anthony Kennedy, a swing vote who sometimes sided with his liberal colleagues on contentious social issues, sets up what is likely to be a bitter political fight over abortion heading into the fall midterm elections.

Abortion rights advocates issued dire warnings.

The "right to access abortion in this country is on the line," the Planned Parenthood Federation of America said. And Trump's pledge "should set off alarm bells for anyone who cares about women," said Nancy Northup, president of the Center for Reproductive Rights, a legal advocacy group.

Anti-abortion-rights groups, on the other hand, predicted a once-in-a-generation opportunity to reshape the ideological cast of the highest court in the land.

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WASHINGTON, DC - APRIL 10: U.S. Supreme Court Associate Justice Anthony Kennedy is seen during a ceremony in the Rose Garden at the White House April 10, 2017 in Washington, DC. Earlier in the day Gorsuch, 49, was sworn in as the 113th Associate Justice in a private ceremony at the Supreme Court. (Photo by Eric Thayer/Getty Images)
Justices of the US Supreme Court sit for their official group photo at the Supreme Court in Washington, DC, on June 1, 2017. Seated (L-R): Associate Justices Ruth Bader Ginsburg and Anthony M. Kennedy, Chief Justice of the US John G. Roberts, Associate Justices Clarence Thomas and Stephen Breyer. Standing (L-R): Associate Justices Elena Kagan, Samuel Alito Jr., Sonia Sotomayor and Neil Gorsuch. / AFP PHOTO / SAUL LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)
WASHINGTON, DC - APRIL 10: U.S. Supreme Court Associate Justices Anthony Kennedy and Neil Gorsuch are seen during a ceremony in the Rose Garden at the White House April 10, 2017 in Washington, DC. Earlier in the day Gorsuch, 49, was sworn in as the 113th Associate Justice in a private ceremony at the Supreme Court. (Photo by Eric Thayer/Getty Images)
U.S. Supreme Court Justice Neil Gorsuch, left, embraces Associate Justice Anthony Kennedy after taking the oath of office during a ceremony in the Rose Garden at the White House in Washington, D.C., U.S., on Monday, April 10, 2017. U.S. President Donald Trump said Gorsuch is 'deeply faithful to the Constitution' in the beginning of his speech at the start of the ceremony. Photographer: T.J. Kirkpatrick/Bloomberg via Getty Images
WASHINGTON, DC - APRIL 10: U.S. Supreme Court Associate Justice Anthony Kennedy delivers remarks before administering the judicial oath to Judge Neil Gorsuch during a ceremony in the Rose Garden at the White House April 10, 2017 in Washington, DC. Earlier in the day Gorsuch, 49, was sworn in as the 113th Associate Justice in a private ceremony at the Supreme Court. (Photo by Chip Somodevilla/Getty Images)
UNITED STATES - FEBRUARY 28: President Donald Trump greets Supreme Court Justice Anthony Kennedy after addressing a joint session of Congress in the Capitol's House Chamber, February 28, 2017. (Photo By Tom Williams/CQ Roll Call)
WASHINGTON, DC - JANUARY 20: Supreme Court Justices Anthony Kennedy, Clarence Thomas and John Roberts arrive on the West Front of the U.S. Capitol on January 20, 2017 in Washington, DC. In today's inauguration ceremony Donald J. Trump becomes the 45th president of the United States. (Photo by Drew Angerer/Getty Images)
WASHINGTON, DC - FEBRUARY 20: U.S. Supreme Court Associate Justice Anthony Kennedy arrives for the funeral of fellow Associate Justice Antonin Scalia at the the Basilica of the National Shrine of the Immaculate Conception February 20, 2016 in Washington, DC. Scalia, who died February 13 while on a hunting trip in Texas, layed in repose in the Great Hall of the Supreme Court on Friday and his funeral service will be at the basillica today. (Photo by Chip Somodevilla/Getty Images)
WASHINGTON, DC - FEBRUARY 19: Supreme Court Justices Elena Kagan, left, Samuel Anthony Alito, Jr., Ruth Bader Ginsburg, and Anthony M. Kennedy react during prayers at a private ceremony in the Great Hall of the Supreme Court where late Supreme Court Justice Antonin Scalia lies in repose on February 19, 2016 in Washington, DC. Justice Scalia will lie in repose in the Great Hall of the high court where visitors will pay their respects. (Photo by Jacquelyn Martin - Pool/Getty Images)
US Supreme Court Chief Justice John Roberts (L) and Justices Anthony Kennedy (2nd L), Ruth Bader Ginsburg (C), Stephen Breyer (2nd R) and Sonia Sotomayor listen to US President Barack Obama deliver the State of the Union address at the US Capitol in Washington, DC, on January 12, 2016. Obama gives his final State of the Union address, perhaps the last opportunity of his presidency to sway a national audience and frame the 2016 election. / AFP / NICHOLAS KAMM (Photo credit should read NICHOLAS KAMM/AFP/Getty Images)
UNITED STATES - SEPTEMBER 24: Supreme Court Chief Justice John Roberts, left, and Justice Anthony Kennedy, attend an address by Pope Francis to a joint meeting of Congress in the House chamber of the Capitol, September 24, 2015. Francis is the first pope to ever address Congress. (Photo By Tom Williams/CQ Roll Call)
U.S. Supreme Court Justice Anthony Kennedy listens to opening statements during a Financial Services and General Government Subcommittee in Washington, D.C., U.S., on Monday, March 23, 2015. Sprinting toward their spring recess, the House and Senate will separately consider budget blueprints, perhaps leading to the first joint congressional budget in six years. Photographer: Pete Marovich/Bloomberg via Getty Images
WASHINGTON, DC - JANUARY 20: U.S. Supreme Court Justices (L-R) John G. Roberts, Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor stand before the State of the Union address by President Barack Obama on January 20, 2015 in the House Chamber of the U.S. Capitol in Washington, DC. Obama was expected to lay out a broad agenda to address income inequality, making it easier for Americans to afford college education, and child care. (Photo by Mandel Ngan-Pool/Getty Images)
U.S. Supreme Court Justices Stephen Breyer, left, and Anthony Kennedy testify during a Financial Services and General Government Subcommittee in Washington, D.C., U.S., on Monday, March 23, 2015. Sprinting toward their spring recess, the House and Senate will separately consider budget blueprints, perhaps leading to the first joint congressional budget in six years. Photographer: Pete Marovich/Bloomberg via Getty Images
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Kennedy's retirement "marks a pivotal moment for the fight to ensure every unborn child is welcomed and protected under the law," said Marjorie Dannenfelser, president of Susan B. Anthony List, whose political action committee backs anti-abortion-rights candidates.

What's unclear, however, is whether opponents of abortion rights would necessarily have the five votes they would need to overturn Roe, regardless of who succeeds Kennedy.

Clarence Thomas is the only sitting justice who has publicly declared opposition to the ruling, having joined the dissent in the court's 1992 landmark ruling in Planned Parenthood vs. Casey, which upheld much of Roe. That dissent explicitly argued that Roe was "plainly wrong."

But many advocates and some legal scholars nonetheless predicted that the three other conservatives on the court — Chief Justice John Roberts, Samuel Alito and Neil Gorsuch — would likely join the new Trump-appointed justice in rulings that would target abortion rights and chip away at the protections of Roe.

"The addition of a new justice, one who will surely be very clear in his or her opposition to abortion ... certainly changes things," said Melissa Murray, a law professor and faculty director of the Center on Reproductive Rights and Justice at the University of California-Berkeley.

"There is no doubt the court will rethink its position on abortion," Murray said.

A decision to undo Roe wouldn't necessarily come immediately or without serious political repercussions, according to legal scholars and commentators.

A challenge to a state abortion law would need to wind its way through the judicial system and reach the Supreme Court before the conservative majority would even have a chance to overrule Roe. That could take years.

And it's not a given that, even with a strongly anti-abortion-rights newcomer, the court could muster a majority to strike down Roe. That's because Roberts has often declared his respect for "settled" court precedents, and "you can imagine that for the legitimacy of the court, the precedent would matter to him," Jeffrey Rosen, president of the National Constitution Center, a congressionally chartered education institute, said in an interview.

Roberts specifically addressed the entrenched nature of Roe twice in Senate confirmation hearings, first in 2003, when he was nominated to the U.S. Court of Appeals for Washington, D.C.

"Roe v. Wade is the settled law of the land," he said. "There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent."

Then, in 2005 during his hearings to be chief justice, he reiterated that Roe was "settled as a precedent of the court, entitled to respect under principles of stare decisis" — Latin for "to stand by things decided."

IMAGE: Abortion rights landscape

Still, should the court choose to carve deeply into Roe, many states would quickly follow suit, the Center for Reproductive Rights contends.

"If Roe v. Wade is overturned, in 24 states, the right to abortion is at the highest risk of loss — these states could ban abortion outright," it said in an update this year of its "What If Roe Fell" analysis.

And the court wouldn't have to overturn Roe to dramatically erode access to legal abortion.

Over the years, many legal cases have sought to erode easy accessibility to abortion, rather than to strike down Roe. Kennedy often voted against such attacks, notably just two years ago in Whole Woman's Health vs. Hellerstedt.

Kennedy joined a five-vote majority in finding that a Texas law imposed an "undue burden" on women by slapping building code requirements on clinics that provide abortion services and demanding that all physicians must have admitting privileges at a local hospital to provide abortions — a requirement that women's groups said would have forced more than three-quarters of the clinics in the vast, largely rural state to shut down.

Depending on when Kennedy's successor is confirmed, he or she could be faced with another partial challenge to abortion rights almost immediately.

In Iowa, the nation's most restrictive abortion law, banning most abortions once a fetal heartbeat is detected, had been scheduled to go into effect on July 1. That's on hold, however, because the law is already being challenged in the courts.

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