In May 1972, I was a freshman at Northwestern University and one night at the cafeteria I walked through the line with a woman I knew, but not particularly well. As we sat down and talked, she seemed visibly upset. She told me what had happened at a fraternity party a couple of months earlier -- what today would be regarded as date rape – and said she was sure she was pregnant.
Abortion was illegal in Illinois in 1972. Having a child at age 19 as a result of a rape was unthinkable to her. Having confided in me, we stayed in touch over the next couple of weeks. I recall her frustration and terror as she tried to find out how to get an illegal, but safe abortion. Ultimately, she did learn of a doctor in a Chicago suburb and went with a roommate to have the procedure.
She finished the school year at Northwestern. I tried to reach her over the summer, but my letters and phone calls went unanswered. I learned in the fall that she transferred to Ohio State.
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I cannot help but think of her as I contemplate the future of abortion rights. Her experience is soon to again be the reality for women in many parts of America.
For the last 45 years since Roe v. Wade in 1973, abortion has been safe and legal; generations of women have grown up with the assumption that a legal abortion was possible. About one million women have an abortion each year in the U.S. The Guttmacher Institute estimates that more than 20 percent of women will have an abortion at some point in their lives.
But I have no doubt that the U.S. Supreme Court is about to change the law on abortion with Anthony Kennedy being replaced, likely by Brett Kavanaugh. In 1992, Kennedy was the deciding vote on Planned Parenthood v. Casey, a 5-4 decision to reaffirm Roe. In 2016, he was the fifth vote in Whole Women's Health v. Hellerstedt, a 5-3 decision to strike down a Texas law that would have closed most abortion clinics in that state.
Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito have voted to uphold every restriction on abortion that has come before them. At the very least, they are certain votes to uphold the almost infinite variety of state laws that have been adopted to impose restrictions, more than 330 passed between 2011 and 2016.
Upholding these laws will make abortion unavailable to most women in the U.S even if Roe v. Wade is not overturned. But there is nothing in the writings or opinions of Roberts, Thomas or Alito that raises doubts that they will overrule Roe if given the chance.
I also have no doubt that Neil Gorsuch and if confirmed, Kavanaugh, will be with them. Overturning Roe has been a core part of conservative ideology for decades. The 2016 Republican Party platform mentions eliminating abortion rights 35 times.
In states like California and New York, abortion will remain legal. But more than half the states will adopt laws prohibiting almost all abortions. The relatively wealthy will be able persuade a friendly doctor to ignore the law, or can afford to travel to a state that still allows abortion on demand. But poorer women and teenagers will face the cruel dilemma of an unwanted child or an unsafe, illegal abortion.
I fear that conservatives will not stop with overruling Roe. If Donald Trump, or a conservative, continues to be president and Republicans control both houses of Congress, it is easy to imagine them adopting a federal law prohibiting all abortions in the United States.
I have heard a number of liberals say that Kavanaugh’s confirmation hearing should focus on issues other than abortion. They are wrong.
Roe v. Wade was right when it was decided and right today. The Supreme Court long has ruled that the Constitution protects basic aspects of privacy, including the right to marry, the right to have children and the right to use contraceptives. The right to choose whether to end a pregnancy must continue to be left to each woman. Every opinion poll shows a majority of Americans agree.
Confirming Kavanaugh will be the end of abortion rights under the Constitution. That is why he should be rejected.
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at firstname.lastname@example.org.