Cuomo Threatens to Sue If Supreme Court Overturns Roe V. Wade

July 12, 2018 6:11 pm Last Updated: July 12, 2018 8:02 pm

On July 11, New York Gov. Andrew Cuomo threatened to “sue” if the Supreme Court overturned the 1973 abortion rights case Roe v. Wade. The governor fears the precedent set by the case would be in jeopardy if Brett Kavanaugh, nominated to fill the seat formerly held by the retired Justice Anthony Kennedy, were to be confirmed.

Speaking to a group of supporters in Poughkeepsie, New York, he made the comment in the context of calling on conservatives in the New York state Senate to pass a law that would enact the position on abortion taken in Roe v. Wade.

“I want to get it done before the Supreme Court does that because I don’t want any gap in a woman’s right to protection, and we have a better legal case when the Supreme Court acts because I will sue when the Supreme Court acts, and I want the New York law in place,” he said.

Cuomo, a lawyer and former state attorney general, did not elaborate on who or what he proposed to sue, and a message to his press office seeking clarity on his comment was not returned. Given the immunity courts and judges have from civil prosecution, the threat seemed like more of a battle cry than an actionable promise, said New York University law professor Oscar Chase.

“It’s a very bizarre idea,” he said. “It sounds like something off the top of his head, that he wants to protect women’s rights.”

Laura Little, a professor of law and government at Temple University, said: “I’m confused by the idea of him suing. … It’s not clear what kind of lawsuit that he would bring. States don’t generally sue the federal government and there’s significant immunity principles that prevent those [cases] from going forward.”

Jonah Goldberg, a senior editor at the National Review, told Fox News: “It’s like he’s a taste tester for a lead paint factory. It’s a sure sign of the desperation of a lot of the liberal activist groups.”

Kavanaugh’s appointment is significant given that the nine-justice court has a five-to-four conservative majority. Kennedy, while conservative, was often a swing vote and helped write the opinion in Planned Parenthood v. Casey, which affirmed the right to an abortion found in Roe v. Wade.

If the Senate, which has a 51–49 Republican majority, confirms Kavanaugh, the court would likely become more conservative.

Responding to questions about abortion on the campaign trail, President Donald Trump had said it should be left to the states to decide. More recently, he told Fox’s Maria Bartiromo on July 1, that he would not ask his nominees their stance on the controversial issue, but that he would pick a “conservative.”

“Maybe someday it will be [left] to the states, you never know how that’s going to turn out. That’s a very complex question,” Trump said.

Also on July 11, Cuomo signed an executive order that would ensure women can get contraceptive services, through their health insurers, including Medicaid, without having to pay for them.