The Surprising Reproductive Rights Issue For Millennials: Judge Appointments

The state of Arkansas recently passed a ban on abortion after 12 weeks of pregnancy, a clearly unconstitutional measure which will be challenged by reproductive justice advocates in the courts. As more states jump on the bandwagon and pass brazenly unconstitutional bans on abortion procedures, the reproductive justice movement must turn an eye to the enormous number of judicial vacancies that may threaten the legal future of reproductive rights.

A slew of recent news articles have decried the incredibly slow rate of judicial confirmation during Barack Obama’s presidency. The Maddow Blog reported that Richard Taranto was finally confirmed 484 days after his nomination to a seat vacated three years ago. The San Antonio Express called the lingering vacancy on the federal court for the Western District of Texas “inexcusable”; the seat has been open since 2008. And the Reno Gazette Journal reported that District Judge Elissa Cadish is just the most recent of many nominees who have asked to be withdrawn from consideration after more than a year of waiting in limbo. There are currently 104 federal judicial vacancies, 30 of which the Alliance for Justice calls “judicial emergencies” due to the caseload those vacancies should be handling.

While this issue may not be sexy, it could have extreme effects on future access to abortion care. Many on both sides of the abortion debate maintain feverish interest in Supreme Court nominations, but circuit and district court judges play an important role in deciding whether anti-choice laws should be implemented while litigation is pending. A district court judge in South Dakota has kept the state’s mandatory crisis pregnancy center visitation law enjoined since late June 2011. Yes, the Eighth Circuit Court may overturn this injunction, but for nearly two years the women of South Dakota have not been forced to comply with this extremely onerous law thanks to Chief Judge Karen E. Schreier’s ruling in the U.S. District Court of South Dakota.

Reproductive justice advocates should be paying attention to state judicial nominations and elections too. After all, access to reproductive justice for some of our country’s most vulnerable women relies on state court decisions. Minors in abusive homes seek out judicial bypass for permission to receive abortion care without parental consent in state courts. Further, some state constitutions are currently interpreted as having broader protections for women and minors than the U.S. Constitution, but a wave of anti-choice judges could change all that (stare-decisis be damned).

Reproductive justice advocates need to start applying pressure to the Obama administration to speed up the nomination process and lobby the Senate to confirm judicial nominees. The Obama administration has seen less judicial nominees confirmed than both President George W. Bush and President Bill Clinton during their first five years. The Bush administration was vocal about its anti-choice judicial appointment strategy; reproductive justice organizations should be lobbying the Obama administration to make appointments that will at least restore an ideological balance to the federal bench.  

As Obama begins to quicken his judicial nomination process, reproductive justice advocates need to get vocal on who they want to see on the federal bench.

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Alison Tanner

Alison is a recent graduate of the University of California - Davis, where she studied political science and women's studies and served the student body as an ASUCD Senator. She is currently a legal assistant for the ACLU's Reproductive Freedom Project. Views expressed here are her own.

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