The next president could nominate enough SupremeCourt justices to determine the future of
and women’s constitutional right to choose.Through a systematic, decades-long campaign, theanti-choice movement has succeeded in moving thecourt to the right. Recent cases concerning abortionrights have been decided 5-4 – and in fact, onecritical decision was reversed from pro-choice toanti-choice in just seven years as a result of only
retirement from the bench. Simply put, on theSupreme Court, choice hangs by a thread.Since 1970, Supreme Court justices have retiredat the average age of 79, and three justices nowserving on the bench – Justices Ruth BaderGinsburg, Anthony Kennedy and Antonin Scalia –are age 75 or older. Should
justice retire before2016, including but not limited to one or more of these three, the president could be presented withan opportunity to tip the court’s balance.
Federal Appellate and District Courts
In addition to the Supreme Court, the presidentnominates judges to the federal appellate anddistrict courts. The power to select lower-court judges often is underappreciated by policyobservers and the public alike – but as explainedbelow, has particular impact when it comes tochoice-related laws.In 1973,
affirmed that privacy is a fundamentalconstitutional right, and said government efforts tolimit that right must be met with “strict scrutiny”by the judiciary. The strict scrutiny standard causedmany restrictions on the right to choose to bestruck down.However, in 1992, in
Planned Parenthood of Southeastern Pennsylvania v. Casey
, the SupremeCourt abandoned the “strict scrutiny” standard,instead adopting a less rigorous standard that allowsstates to impose abortion restrictions as long as theydo not “unduly burden” a woman’s right to choose.The
court stopped short of overturning
,but dramatically diminished protection for thefundamental right to choose.Consequently, since 1992, many lower federalcourts have interpreted the Supreme Court’s “undueburden” standard to allow states to impose severenew restrictions on a woman’s right to choose. Anti-choice laws now in effect across the states includevarious types of abortion bans, laws that compelwomen to hear biased counseling and enduremandatory delays, gag rules on doctors, insurance-coverage bans, policies that allow health-carecorporations to refuse to provide medical services,laws designed to close abortion providers’ doors byoverregulating their medical practice, and more.The role of lower courts in this regime is pivotalbecause the vagueness of the “undue burden”standard leaves much room for judicialinterpretation. At least initially, lower courts decidewhether new abortion restrictions are constitutional.And because very few cases ever reach the SupremeCourt, for many women, the word of lower courtsoften is effectively final.So, while much media and public attention isfocused on the Supreme Court, its rulings, and itsconfirmation battles, when it comes to reproductiverights, the presidential appointment power has asimilarly profound effect at the lower-court level.
The next president will have the opportunity tofill many judicial vacancies, ensuring that his or herinfluence over the issue of legal abortion will extendfor years to come.In recent years, presidents have had the opportunityto nominate, on average, 239 individuals per eachfour-year term to the lower federal courts – just overa quarter of the federal judiciary. Thus, the winnerof the next presidential election will have the abilityto make lifetime appointments of many like-minded judges to these critical positions – shaping the judiciary branch in a profound way and impacting thefuture of women’s reproductive health far beyond hisor her term of office.
“There is no single issue on which the next president,by himself, will have any greater impact than theSupreme Court.”
— Wendy Long, Judicial Confirmation Network
“The Supreme Court trumps everything for conservatives.The shape of the court has the most long-term effects.”
— Karlyn Bowman, American Enterprise Institute
* 2011 number is accurate as of July 15, 2011.