Enough of court packing fantasies. Let me try to think through the probable consequences of Brett Kavanagh’s confirmation.
Very quickly after that confirmation, a case would come before the High Court that would result either in the overturning of Roe v. Wade or in a restriction of its application so severe as to constitute de facto reversal. [At this point I proceed without any real legal knowledge, so the reader should be wary of my conclusions.] This would not make abortion illegal in the United States. It would simply leave in place and once again in force existing state anti-abortion laws. In many states, encompassing, I believe, a majority of the population, abortion would be legal. There would be some pro-abortion states [Massachusetts?] in which anti-abortion laws that had never been reversed but had simply been overruled by Roe would suddenly once again become state law, and would have to be removed by state legislative action. There would be anti-abortion states where laws designed to make abortion impossibly difficult to obtain would be replaced by outright prohibitions. The issue of abortion would become the determinative factor in struggles for control of state legislatures. There would be an attempt in Congress to pass a federal prohibition on abortion, and although it would be expected to be upheld by the Supreme Court, it would, I believe, fail to get the necessary votes.
Thus on the issue of abortion, America would become two nations under one flag.
But that would not be the end of it. Middle class and upper middle class women in anti-abortion states desiring an abortion would have the option of traveling to abortion-legal states, where they could obtain an abortion safely, legally, and privately from a health clinic. This would of course include the wives and daughters of publicly anti-abortion male politicians. The overturning of Roe would affect most immediately the tens of millions of women whose economic circumstances made such private medical trips prohibitive or whose understanding of the medical realities and available options was limited by their education and the nature of their medical care and insurance.
This would be a cruel, hypocritical, and in my judgment unsustainable state of affairs. But I think it is almost certainly the state of affairs we would see come to pass if Kavanagh were confirmed.
Will he be confirmed? I don’t know.