CARSON CITY — President Donald Trump is set to announce his nominee to replace Justice Anthony Kennedy on the U.S. Supreme Court, and women’s reproductive rights loom large in the decision.
Talk of the high court potentially overturning the 1973 Roe v. Wade ruling has swirled in the wake of Kennedy’s retirement, but legal experts say abortion should remain legal in Nevada even if the historic decision were reversed.
“I think we’re in sort of a unique position for a state, really,” said Ian Bartrum, a constitutional law professor at UNLV.
Should Roe be overturned, Bartrum said, the most likely outcome is states gaining the right to outlaw or allow abortions.
“For the states that want to allow abortions, Roe is not relevant,” said David Orentlicher, a constitutional law professor at UNLV. “But for those who want to ban abortions, Roe has been very significant.”
Nevada voters settled that position nearly three decades ago.
In 1990, Nevadans voted to approve Question 7 — by a 63.5 percent to 36.5 percent margin — and codified a statute that allows abortions within the first 24 weeks of pregnancy. The vote effectively wrote the Roe decision into state law. And that law can only be changed or removed by another vote of the people.
“I think it does a good job of insulating the law from whatever the court does,” Bartrum said.
That is what organizers of the 1990 petition hoped it would do.
Mylan Hawkins, who helped coordinate the campaign nearly three decades ago, said that enshrining Roe into state law was the strongest option they had.
“We banked on exactly this happening sometime, where Roe was going to be challenged at the Supreme Court level. That someday we would have a president like the current one, who would seek to overturn it,” Hawkins said.
But in order to impact Nevada’s law, the U.S. Supreme Court would have to make a “surprising” decision, Orentlicher said.
“They would have to not only overturn Roe, but also say that a fetus is a person and say that states have to apply their bans on killings to have to apply to a fetus as well,” he said. “That is such a stretch.”
“It will be controversial enough to give states the freedom to restrict abortion,” he added.
Question 7 can be changed only if it is placed on the ballot, either by the state Legislature or by gathering signatures equal to 10 percent of the number of people who voted in the most recent statewide election. Petitions for the 2018 ballot needed more than 112,000 signatures to qualify.
Past efforts to change the state law have come short of that, most recently in 2012.
But Bartrum, the UNLV law professor, said that if the high court overturns Roe v. Wade and the later Planned Parenthood vs. Casey decision, which strengthened abortion protections, he expects a campaign from anti-abortion groups.
“I have no doubt that, were Casey and Roe overturned, that you would have immediate activity in Nevada and every other state to try and get a measure passed outlawing abortion,” Bartrum said.
Nevada Attorney General Adam Laxalt, Nevada’s Republican nominee for governor, has found himself in the middle of such talks. In March, Laxalt signed onto an amicus brief defending a Texas law that bans a common form of abortion used in the second trimester.
Last month, Laxalt was asked by a Reno television station if he would put forth a referendum to undo Question 7.
“We are going to look into it,” Laxalt said.
Laxalt’s campaign said his comments were taken out of context and that he has “zero interest” in undoing Question 7. (You can see the raw video of the interview here).
Hawkins said she’s “not yet” worried about the 1990 referendum being undone, and she believes that should it make its way back to voters, it would pass by a similar or even larger margin than what was achieved in 1990.
“This is a complicated issue,” she said, “but it isn’t something that should be taken lightly.”