Justice Anthony Kennedy’s retirement has created the most important vacancy on the Supreme Court in our lifetimes. Whoever fills Justice Kennedy’s seat will join an evenly divided court with the ability to affect the laws of the United States and the rights of its citizens for generations. Enormously important issues hang in the balance: the right of workers to organize, the pernicious influence of dark money in politics, the right of Americans to marry who they love, the right to vote.
Perhaps the most consequential issues at stake in this Supreme Court vacancy are affordable health care and a woman’s freedom to make the most sensitive medical decisions about her body. The views of President Trump’s next court nominee on these issues could well determine whether the Senate approves or rejects them.
President Trump’s own words tell us that his nominee to the court will almost certainly vote to overturn Roe v. Wade and eviscerate affordable access to health care for millions of Americans. President-elect Donald Trump said in November of 2016 that “I’m pro-life; the judges will be pro-life.” During the campaign, he speculated that after he appointed two or three judges to the bench, Roe v. Wade “will go back to the individual states.”
In practice, sending Roe v. Wade back to the states would claw back a constitutional freedom to abortion that all American women have had for over 40 years. There are at least 20 states poised to ban abortion immediately if the 1973 decision is overturned, and legislatures in Iowa, Mississippi and Louisiana have already passed strict anti-abortion laws that could trigger challenges to the decision.
We also have it straight from the president’s mouth that he intends to nominate a justice willing to reinterpret the constitutionality of our current health care system. In January 2016, then-candidate Trump said that Chief Justice John Roberts “turned out to be an absolute disaster because he gave us Obamacare.” Later he said, “I don’t think I’ll have any catastrophic appointment like Justice Roberts,” making it clear he will nominate someone hostile to the court’s 2012 ruling upholding a core provision of the Affordable Care Act.
Already, several cases are wending their way through the courts that challenge that decision. Congressional Republicans have eliminated the penalty associated with the requirement that all Americans maintain health care coverage, prompting opponents of the law to argue that the basis for Justice Roberts’ 2012 ruling has been undermined. If that change in law alters Justice Roberts’s view, and Mr. Trump’s nominee adheres to the president’s stated animosity toward our health care system, the next Supreme Court justice could wipe out the entire law and its protections for as many as 130 million Americans with pre-existing conditions.
Deep-pocketed conservative special interests are chomping at the bit to take down the health care law. They will sponsor any conceivable litigation against the Affordable Care Act with the potential to reach the Supreme Court. A reliably conservative majority makes it much more likely that one of those attempts succeeds.
Of course, President Trump’s nominee will not admit that they would vote to overturn a woman’s freedom to choose or gut protections for Americans with pre-existing conditions. Just like Justice Neil Gorsuch, and Justices Antonin Scalia, Clarence Thomas, Roberts and Samuel Alito before him, the next nominee will obfuscate and hide behind the shopworn judicial dodge, “I will follow settled law.” (But as we have seen in many decisions, including the Janus ruling this past week, settled law is only settled until a majority of the Supreme Court decides it is not.)
The American people should know that President Trump is only considering names culled from a list of 25 vetted by the Heritage Foundation and Federalist Society — organizations whose mission is to reverse Roe v. Wade and shrink government’s involvement in health care respectively. Given President Trump’s explicit litmus test of “pro-life,” it is virtually certain that anyone on the list of 25 would vote to overturn Roe and very likely to dramatically cut back on health care.
For Americans who value our rights and the progress our country has made over the last decade, it is no longer enough to wait until November to safeguard the rights and opportunities we enjoy today. The Republican majority in the Senate is razor-thin. One or two votes in the Senate will make the difference between the confirmation and rejection of an ideological nominee. If the Senate rejects an extreme candidate, it would present President Trump the opportunity to instead select a moderate, consensus nominee.
While the number of Democrats in the Senate is not a majority, the number of senators who believe in protections for those with pre-existing conditions and women’s reproductive rights is. Given this vacancy, the best way to defend those rights is for a bipartisan majority in the Senate to lock arms and reject a Supreme Court nominee who would overturn them. It will not happen on its own. It requires the public’s focus on these issues, and its pressure on the Senate.
If you do not want a Supreme Court Justice who will overturn Roe v. Wade and undo the Affordable Care Act, tell your senators they should not vote for a candidate from Mr. Trump’s preordained list. Democrat, Republican, independent, liberal or conservative — we should all want a more representative process for choosing the next Supreme Court justice.
Chuck Schumer, Democrat of New York, is the Senate minority leader.