In this op-ed, Erin Matson, co-founder and co-director of Reproaction, explains why civil disobedience should be on the table when it comes to preserving abortion rights.

For abortion opponents, Brett Kavanaugh is — to borrow the parlance of baseball — somewhat of a closing pitcher. While there have been other justices who would vote to overturn Roe v. Wade and end the federal constitutional right to abortion, Kavanaugh’s decisions on reproductive rights have anti-abortion groups strongly supporting his nomination. For that reason, many have noted that he could be the one to shut it all down. Nominated to replace Justice Anthony Kennedy, who had been a swing vote in favor of protecting abortion, Kavanaugh would turn the court into an enduring five-vote majority — an all-male majority — opposed to abortion rights. Since the Roe v. Wade decision in 1973 that made outright abortion bans unconstitutional, the threat to maintaining that decision in the United States has never been this pronounced. Congress can’t be counted on to save us, as we’ve seen legislators fail us before, letting laws critical to our health lapse. As the nomination hearings begin, we need to keep that in mind. That’s why strategic, non-violent civil disobedience needs to be on the table.

The conventional paths to stopping this nomination seem slim. Yes, everyone should call their Senators and demand a "no" vote during the confirmation hearings, which begin on September 4, and to delay the confirmation vote until after the midterm elections later this year. But the balance of power is ominous. Senate Majority Leader Mitch McConnell (R-KY) previously triggered a rules change, destroying the filibuster in order to confirm Trump's first Supreme Court nominee, Justice Neil Gorsuch. Without the possibility of filibuster, only a 51-vote majority is required to confirm Kavanaugh, and Republicans hold 51 seats in the Senate (though it's not clear whether Sen. John McCain will return to Washington for the vote, as he's been away following treatment for brain cancer). In order to block his confirmation, Senate Minority Leader Charles Schumer (D-NY) would need every Democrat and two Republicans to vote no.

But, a handful of Democrats are considered vulnerable to voting for Kavanaugh. And, self-proclaimed "pro-choice" Republican Senators Susan Collins (R-ME) and Lisa Murkowski (R-AK) have indicated they may vote to confirm Kavanaugh, even though Trump promised to nominate justices to the Supreme Court who would overturn Roe v. Wade.

If Roe is overturned, some states may make abortion illegal, which is targeted persecution of women and people who can become pregnant. When abortion is made illegal, women may be more vulnerable to being imprisoned not just for abortion but for miscarriages and pregnancy more broadly, as is the case in El Salvador where abortion is punishable by up to eight years in prison and women have been incarcerated for stillbirths and miscarriages. It is already happening here. National Advocates for Pregnant Women has documented that more than 1,200 women have been arrested in the United States in relationship to their pregnancies and pregnancy outcomes between 1973 and 2018. That number could rise if Roe is overturned, because we know that banning abortion doesn’t end abortion — it simply ends the legal ones.

We do not need to calmly accept this. Non-violent civil disobedience is a peaceful refusal to comply with laws as a form of political protest; it has a long tradition within civil and human rights movements. If lobbying, marches, and rallies do not work, we may indeed have a collective moral obligation to resist the dystopia of criminalizing pregnancy in ways that break the law.