The incoming Trump-Pence administration has promised to do everything in its power to overturn the Roe v. Wade Supreme Court decision that decriminalized abortion on January 22, 1973. The paths to doing so are complicated, but the actions of a 115th Congress dominated by vehement anti-abortion legislators thus far confirm reproductive justice advocates’ concerns that the right to end a pregnancy is in jeopardy.
Recent and current state legislatures have chipped away at the promise of Roe with a fervor never seen in our country’s history: 338 restrictions have been passed since 2010. However, the right to choose has been protected at the federal level by the promise of a veto from President Obama. With that protection gone, advocates are bracing for approaches ranging from the already introduced complete ban on abortion to stacking Supreme Court vacancies with abortion opponents who could strike down Roe — or even declare abortion illegal nationwide.
NARAL Pro-Choice America’s vice president of policy Donna Craine told Truthout that a Supreme Court with enough anti-abortion justices to overturn Roe could also recognize a fetus as a person with legal rights.
“There is nothing stopping the Supreme Court from doing that except the number of votes,” said Craine. “There are justices on the bench today that want to see abortion made illegal nationwide and if they have enough votes to do it, they will do it. It’s not as if the Supreme Court can ‘just’ take away the Roe protection; it can make abortion illegal nationwide.”
Currently, there is one vacancy on the Court, created a year ago when Justice Antonin Scalia passed away. The GOP has refused to hold confirmation hearings on Obama’s moderate nominee, Merrick Garland, so this vacancy will be Trump’s first opportunity to shift the court to the right. The balance now is roughly a 4-1-3, somewhat liberal-leaning Court with Justice Anthony Kennedy occupying the unpredictable middle spot. While he has articulated his discomfort with abortion — only voting to strike down two of the 22 restrictions that have come before the Court during his tenure, he was in the majority that found last year that the state of Texas overreached in HB2 and has showed no interest in overturning the 44-year precedent of Roe.
The average Supreme Court justice age for retirement is just shy of 79. At the Inauguration, Kennedy will be 80 and two of the four liberal justices — Ruth Bader Ginsburg at 83 and Stephen Breyer at 78 — will be retirement age. Concerns that President Trump could potentially flip the court to a 2-7, definitively right-wing make-up are warranted. It’s unclear how Chief Justice John Roberts would vote when faced with overturning precedent as longstanding as Roe, but his vote could be irrelevant should Trump get to stack the court.
Every expert who spoke with Truthout pointed out that it wouldn’t take a direct challenge to Roe for motivated justices to negate it and/or make abortion illegal nationwide. In other words, the Court could make a decision on the national legality of abortion even if it is not presented with a case that specifically raises the issue.
“Nothing constrains a majority of justices from going beyond the contours of a certain case that’s presented to them,” Craine explained. “Citizens United is a great example of that.”
Barriers That Could Delay the Right-Wing Assault on Roe
So, it is possible to overturn Roe through a direct challenge or the creation of overriding new precedent from a decision on one of the annually available abortion cases in the circuit and appeals courts pipeline. However, it’s not as snap-of-the-fingers simple as Trump — and many like-minded Congress members — made it out to be during the campaign season.
Amy Hagstrom-Miller, president and chief executive officer of Whole Woman’s Health and lead plaintiff in last year’s Whole Woman’s Health v. Hellerstedt, noted in a press call for the 44th anniversary of Roe v. Wade that we don’t know when a second Supreme Court vacancy will open up. It could be several years before the court’s balance definitively shifts.
“We have to remember that Whole Woman’s Health won a major Supreme Court case in a 5-3 decision and that the Supreme Court isn’t going to be changed overnight,” Hagstrom-Miller said. “There’s one open seat, and it’s going to take a lot more of that to go through the process everybody’s worried about, about overturning Roe and flipping the court.”
While lawyer/author and Abortion Care Network board member David Cohen conceded that it “wouldn’t be hard at all with committed justices,” he described the path to an ultra-right-wing court as long and challenging. How challenging depends on the timing of potential vacancies and the willingness of Senate Democrats and moderate Republicans to hold up confirmation of any justice who won’t commit to upholding existing precedent, or — in “court speak,” upholding the “rule of law.”
“The Senate is where the battle is for the Supreme Court, so I think people need to be laser-focused on calling their senators and making sure that they fight,” said Cohen. “They need to hear, ‘We want you to stand up against overturning Roe.'”
The most important senators on his list are the 13 who are up for reelection in 2018 in states either won or very narrowly lost by Trump: Florida, Indiana, Maine, Michigan, Missouri, Montana, Nevada, North Dakota, Ohio, Pennsylvania, Vermont, West Virginia and Wisconsin. Other possible allies include the only two to show a propensity for breaking with their party on reproductive health issues: Senators Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska).
The Senate also has the ability to hold up and block appointees, such as Sen. Jeff Sessions nominated for Attorney General.
Sen. Mazie Hirono (D-Hawaii), who mentioned on last week’s press call that she remembers when her state was the first in the nation to decriminalize abortion on March 13, 1970, said the Sessions nomination in particular bothers her. During his hearing, Sessions refused to answer Hirono’s questions about abortion access and has publicly decried Roe as being based on politics rather than constitutional rights.
“[I asked] the question of what happens if the Supreme Court is presented with an opportunity to reverse Roe v. Wade: As Attorney General, would he direct his solicitor general to go in and advocate for that reversal,” said Hirono. “He did not respond to that question saying that it was hypothetical, but we all know it’s not much of a hypothetical because President Trump is going to appoint someone who will be open to reversing Roe v. Wade.”
The only avenue besides the courts to block, overturn or otherwise make Roe irrelevant would be a constitutional amendment making abortion illegal. Considering how rarely an amendment of any kind is ratified, this isn’t a possibility discussed by abortion advocates. Instead, legislation — which can be replaced by subsequently elected legislators — and litigation will continue indefinitely to be the weapons wielded by both proponents and opponents.
“This will always be a battle, I think; people have to understand that they have to continue to speak up about this, that Roe is not set in stone,” Cohen said. “This is not going to go away because no matter what, women are always going to get abortions — it’s just [a question of] whether they’re safe — and no matter what, there’s going to be a sizable group of people who’re going to think it’s murder.”
The Threat of New State-Level Restrictions on Abortion
With such a long path to overturning Roe, all the advocates who spoke with Truthout issued emphatic warnings about state-level restrictions.
“The action we have seen around abortion over the past two decades has been much more around chipping away at the right to choose than overturning it outright,” said Cohen. “I don’t want to let people think their rights are safe as long as some shell of Roe remains on the books. We have seen clinics close and several hundred — I think we’re into the 900s — restrictions on legal abortion in the last 20 years because of the Casey [v. Planned Parenthood] decision, and Casey didn’t overturn Roe.”
Casey introduced the vaguely worded concept of “undue burden” — or the idea that people seeking abortion can be impeded by state restrictions so long as those restrictions do not create too much burden. How much is too much has been the focus of debate since that decision. This concept accounted for the pivotal push and pull in Whole Woman’s Health v. Hellerstedt, as the state of Texas attempted to argue that the onerous restrictions in HB2 requiring patients to spend hundreds of extra dollars and travel hundreds of miles didn’t constitute a violation of their right to access abortion without excessive hurdles. Casey’s precedent has been used by anti-abortion legislators and activists to brush off all manner of state-level restrictions. The Guttmacher Institute,a reproductive health non-profit, tallied 50 new abortion restrictions in 18 states in 2016 — bringing the number of restrictions passed since the Tea Party wave of 2010 to 338.
The Population Institute, an international nonprofit focused on access to reproductive care and information, incorporated those laws into the just-released annual report card on reproductive health and rights. The US received its lowest grade to date with 20 states receiving a failing grade; only 21 received either an A or a B.
“Because of new state restrictions on abortion rights and an increasingly hostile political atmosphere, the United States slipped from a “D+” last year to a “D” in 2016,” the study summary explains. “While the Senate foiled the attacks on family planning and reproductive health in 2016, the political outlook for 2017 is bleak.”
According to NARAL’s state reports over the past several years, “fully pro-choice” state houses (with pro-choice governors, as well as both houses of the legislature) are rare — typically in the low single-digits. The battle is sure to continue at the state level even as the media and electorate is focused on the new president and his congressional allies.
“Our Power Is in Linking Arms Across Movements”
Dr. Lisa K. Perriera, an OB/Gyn and abortion provider in Philadelphia, has seen access severely restricted in her state, and she says her resolve to continue seeing patients and speaking out has never been stronger.
“When my patients decide to end a pregnancy, it’s my job to provide them with quality, compassionate care. It’s my job to respect them, and their decisions, which is something no politician should interfere with,” said Perriera. “Today, 44 years after Roe, and even before Trump gets into office, women are struggling to get abortion care…. I’m truly afraid of what Trump will bring, and how this already difficult situation could be made much worse.”
Despite that fear, she remains hopeful — one reason she’s marching in protest the weekend of the Inauguration.
“I hope that he will choose to respect women during his presidency,” Perriera said. “I hope that he will realize that he is a role model for the two sons I brought into this world, and that — despite what he has said up until this point — the legacy of his time as president is not yet written. It’s his to choose.”
While things understandably seem dire and lives will likely be adversely affected or even lost due to the intensification of anti-abortion politics, Hagstrom-Miller encourages people to draw strength from the resistance efforts in states like Texas.
“We have had administrations very similar to what we now have at a federal level with Trump for a long time, and I think it’s important for us to engage — to tell the stories of real people’s lives and to not be dismayed just because of loud voices who have a lot of power,” said Hagstrom-Miller. “Our power is in numbers and our power is in linking arms across movements … knowing very confidently that we are the majority and that we will lead this country.”
Part of that leadership involves pushing back on the Trump administration at every turn, beginning with his first day in office. Rep. Barbara Lee (D-California) is continuing her legacy of advocating for reproductive rights into the Trump era: She led the boycott of the inauguration. In her statement about why she would not be attending, she described inaugurations as “celebratory events” and that she refused to honor “an incoming president who rode racism, sexism, xenophobia and bigotry to the White House.” By the day before the Inauguration, 67 Democratic House members were publicly staying home.
“Let me tell you, I remember the days of back-alley abortions very clearly,” Lee said on a press call last week. “The resistance has got to not only start, but be very, very aggressive and assertive … Roe v.Wade enshrined women’s Constitutional right to control their own bodies. It was the end of an era when women were denied the legal right to abortion and were forced into silence, shadows and shame. And no matter what President-Elect Trump or Speaker Ryan think, we are not going back.”