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How likely is Roe v. Wade to be reversed soon?
Very likely. Here’s why:
1) The election of Donald Trump has emboldened anti-abortion activists.
Anti-abortion forces are already passing restrictive legislation, encouraged by the election of Donald Trump, who has vowed to appoint judges and justice opposed to abortion rights. Governor Kasich of Ohio—long considered to be a moderate state—just signed into law a ban on abortions after twenty weeks of pregnancy (although he vetoed a more extreme measure that would have banned abortions after a fetal heartbeat is detectable).
Ohio’s law, like similar bans in seventeen other states, is blatantly unconstitutional under Roe v. Wade, the landmark 1973 case which guarantees women a right to choose abortion at least through viability (twenty four weeks and up, depending on the pregnancy). But that’s by design. It was passed expecting court challenges—cases that could go all the way up to the U.S. Supreme Court and reverse Roe v. Wade. The pace of such legal provocations figures to only increase during Trump’s administration.
2) President Trump will certainly get to appoint one anti- abortion justice, and very likely two or more.
Last year’s death of Justice Antonin Scalia, and the GOP’s refusal to vote on President Obama’s choice of replacement, means that upon taking office President Trump will immediately have the opportunity to fill that seat. He has vowed to appoint only anti-abortion judges, especially on the Supreme Court. But replacing a conservative with a conservative won’t change the balance of power.
The big moment will come when another justice leaves the bench. Supreme Court appointees have lifetime appointments, and usually leave only through death. Three liberal justices are 78 or older. Lifetime women’s rights advocate Ruth Bader Ginsburg—known by her admirers as RBG—is the oldest, a cancer survivor at 83.
3) If Trump gets the chance to appoint an anti-abortion justice to replace one of the aging liberal justices, Roe v. Wade is likely over.
The high court’s most recent abortion ruling is June 2016’s Whole Woman’s Health v. Hellerstedt, which struck down Texas laws that made it difficult for abortion clinics to operate. Texas had required physicians performing abortions to have admitting privileges at a hospital within 30 miles and to be fitted out like ambulatory surgical centers (requiring expensive renovations). In a 5-3 ruling (with an absent seat previously occupied by Justice Scalia) all three women justices—RBG, Sotomayor, and Kagan—as well as Justices Breyer and Kennedy reaffirmed Roe v. Wade. The majority said that placing these “substantial obstacles” in the path of women seeking abortion violated their constitutional right to the procedure under Roe v. Wade (and its follow up case, Planned Parenthood v. Casey).
The anti-abortion minority in the Texas case—Thomas, Alito, Roberts—would have upheld Texas’ restrictions, because they do not believe women should have a constitutional right to an abortion in the first place. Or at the very least, that is the position of Justice Thomas, who made his stance very clear: “This suit is only possible because the Court has allowed abortion clinics and physicians to invoke a putative constitutional right that does not belong to them—a woman’s right to abortion.” And: “I remain fundamentally opposed to the Court’s abortion jurisprudence.”
Meanwhile, Justices Alito and Roberts dissented on technical grounds in order to avoid the constitutionality of abortion in general: “The constitutionality of laws regulating abortion is one of the most controversial issues in American law, but this case does not require us to delve into that contentious dispute.”
But it seems clear that all three justices in the dissent would lean toward voting to overturn Roe v. Wade if given the chance. Justice Alito was so angered about the majority decision in the Hellerstedt case that he read a summary of his dissent from the bench, slamming the majority for disregarding “basic rules that apply in all other cases.” And while Justice Roberts has been working to track toward the Kennedy-esque center, there are indications—like having a wife who is notably pro-life—that he would have leanings against legal abortion.
Only five votes are needed to reverse Roe v. Wade, which for over forty years has granted American women and girls the right to safe, legal abortion. Soon the Court will have at least three locked in: Justices Thomas, Alito, and the new Trump appointee, as well as a possible fourth in Justice Roberts. The appointment after that—with a demonstrably anti-abortion Republican majority in the Senate—has strong potential to change any number of longstanding precedents and existing laws, including Roe v. Wade.
The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.