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How Might The New Supreme Court Nominee Impact Abortion Rights?

Jul 11, 2018
Originally published on July 11, 2018 5:16 am
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NOEL KING, HOST:

President Trump has picked Judge Brett Kavanaugh as his nominee for Supreme Court justice. Kavanaugh, if confirmed, would replace Justice Anthony Kennedy, who is retiring. Republicans have celebrated Kavanaugh for his impressive resume and extensive experience as a federal appeals court judge. Most Democrats, on the other hand, oppose him. President Trump has said from the beginning that he wants to appoint a judge to the Supreme Court who is, in his words, pro-life. That has many people thinking about Roe v. Wade, the landmark 1973 case that gave women the right to have abortions. Sarah Weddington was a 26-year-old attorney from Texas when she argued that case in front of the Supreme Court and won. She's with me now. Good morning, Ms. Weddington.

SARAH WEDDINGTON: Good morning.

KING: All right. So tell me - what was the legal reasoning the Supreme Court used when they decided Roe v. Wade?

WEDDINGTON: It was basically that there was a right of privacy that made it possible for women to make the decision about whether to continue or terminate a pregnancy. And that has continued to be the focus of several Supreme Court decisions since then.

KING: What changed when that ruling was handed down in 1973?

WEDDINGTON: Well, for women, everything - because once the decision came down, it meant that doctors were then free to perform abortions legally and didn't have to be afraid they would be arrested for an illegal abortion.

KING: Back in 1992, the Supreme Court weighed a case, Planned Parenthood v. Casey, that might have overturned Roe v. Wade. Now, Justice Kennedy was the swing vote that prevented that. By your understanding, what were the legal principles that guided him in that case?

WEDDINGTON: Well, I think it was still the right to privacy. But in that case, no state law had made abortion illegal. It made it much more difficult, with conditions about what the room had to look like and what the - how wide the hallways had to be and all kinds of things. And Justice Kennedy basically said, no, Roe v. Wade makes abortion legal, and you can't do all these conditions, as Pennsylvania had done, that makes it impossible for access.

KING: How might Kavanaugh or the court change the way Roe v. Wade is interpreted?

WEDDINGTON: Well, my guess is that someone like Kavanaugh would write an opinion basically saying there is no right of privacy. The language is not in the Constitution, and so it doesn't really exist. It was made up by the justices at the time. There's also a possibility they would say, well, it still allows the states to legislate in whatever way they want to. But frankly, I have no idea what he might do, except I'm sure he'll be against Roe v. Wade.

KING: Well what do you make of the argument that this is a state's rights issue, that this should be decided by individual states?

WEDDINGTON: Under the court's decision, privacy is not meant to be a one-state deal. It's meant to be the basis for people living in all the United States. And it has been up to now.

KING: I'm wondering if I can finish up with a personal question. Many years after Roe v. Wade, you wrote in your memoir that as a young woman, you had an abortion. You had to go to Mexico to get the procedure done. When you reflect back on that time in your life, in light of Kavanaugh's nomination, where does your mind go?

WEDDINGTON: To gratitude that I had the opportunity but anger that suddenly Trump, who has no right to give speeches to anybody about ethics, is now saying, well, he thinks women shouldn't have abortions. Well, frankly, I don't care what he thinks. And I just hope that this person who's now been nominated...

KING: Kavanaugh.

WEDDINGTON: ...Kavanaugh, will be turned down.

KING: Sarah Weddington was a 26-year-old attorney from Texas when she argued Roe v. Wade in front of the Supreme Court and won. Ms. Weddington, thank you so much for your time.

WEDDINGTON: Of course. Transcript provided by NPR, Copyright NPR.