Opponents of abortion rights are “emboldened” by the election of Donald Trump. States are already beginning to push the envelope in terms of abortion regulation, with the Ohio legislature recently attempting to pass a “heartbeat bill” that would have effectively banned abortions after about six weeks of pregnancy. (Governor John Kasich ended up signing a bill that banned abortions after 20 weeks.) All this makes the fate of the last remaining barrier between Republican statehouses and severe abortion restrictions—the Supreme Court’s 1973 decision in Roe v. Wade to uphold a constitutional right to an abortion—of vital importance. Alas, as the clock ticks down to Donald Trump’s inauguration, Roe’s prospects do not look good.
In the short term, the status quo—in which states are given extensive, but not unlimited, leeway to regulate pre-viability abortions—will prevail. But in the longer term, there is a high probability that a Trump administration will spell the end of Roe, with no immediate prospects for recovering a Supreme Court majority willing to protect the reproductive rights of women.
Thanks to Senate Majority Leader Mitch McConnell’s cynical but politically brilliant gamble of refusing to give a hearing to President Barack Obama’s nominee, Merrick Garland, the people’s second choice will enter office with a Supreme Court vacancy to fill. And if you had any doubt that Trump will be nominating an orthodox conservative to replace the late Antonin Scalia, surely the Heritage Foundation dream team that his proposed cabinet nominees constitute settles the question.
But replacing Scalia with someone as bad or worse doesn’t immediately change the landscape for reproductive rights, because Justice Anthony Kennedy would remain the median vote on the Court. This is by no means great news—while he has voted to re-affirm Roe, he has also been crucial in allowing states to place various arbitrary restrictions on abortion that impose particular burdens on poor and rural women. But Kennedy did finally snap in, voting to strike down several egregious Texas abortion restrictions earlier this year.
The real potential danger lies down the road. Justice Ruth Bader Ginsburg is an 83-year-old cancer survivor, Justice Stephen Breyer is 78, and Kennedy himself is 80. Ginsburg and Breyer will almost certainly stay on the Court as long as they’re physically able to serve, but four years is a long time. And it’s possible that Kennedy could resign to be replaced by a Republican successor, although he might be the kind of nearly extinct moderate Republican who disdains Trump. Democrats will face the odd situation of doing their damnedest to keep Kennedy on the court for four more years.
But if Trump is able to get one more nominee confirmed after replacing Scalia, that will make Chief Justice John Roberts the median vote on the Court. What happens then? At that point, the only question is whether Roe is quickly executed or slowly strangled to death.
Admittedly, previous Supreme Courts that were even more dominated by Republicans refused to overrule Roe. But this was not some kind of conscious decision by Republican elites; rather, it was due to a series of flukes and political calculations that no longer apply. Consider the nominees of Ronald Reagan and George H.W. Bush, who were all essential to Roe’s partial survival. Sandra Day O’Connor, who was known to be a moderate on abortion, was nominated by Reagan to fulfill his promise to nominate the first female Supreme Court justice at a time when there were few viable candidates—a tradeoff no Republican president would make today. Kennedy was on the Court only because the Senate rejected Reagan’s first choice, the fiercely anti-Roe Robert Bork. David Souter was the product of idiosyncrasies within the first Bush administration—most notably the influence of two prominent New Hampshirites who admired Souter—and his liberal record on the Court means that no Republican president will ever nominate someone like Souter again (and if they did, a Republican Senate would reject the nomination).
If Reagan had just nominated Bork while he still had a Republican Senate, Roe almost certainly would have been overruled in 1992, when the Court instead upheld a constitutional right to abortion in Planned Parenthood v. Casey. If Trump gets at least two Supreme Court justices confirmed, this luck will run out.
As his dissenting vote in this year’s Texas abortion case makes clear, Chief Justice Roberts does not believe in the constitutional protection of a woman’s reproductive rights. And it is entirely possible that at the first opportunity he will author a decision overruling Roe. Still, a more likely possibility is that he will use the same fake-minimalist approach he’s used in areas such as campaign finance and voting rights, incrementally undermining the foundations of precedent before going in for the kill shot. Rather than loudly announcing that he’s overruling a precedent, he treads carefully, ruling on the issue at hand and setting up a later attack. The classic example is him planting the idea that the Voting Rights Act had to comply with a newly minted “equal sovereignty of the states” restriction, in a deceptively unanimous 2009 opinion—then using it to gut the Voting Rights Act four years later.
If he chooses the latter route, he can use the roadmap set out by his predecessor and former boss, William Rehnquist. In the late 1980s, Rehnquist tried to effectively overrule Roe without explicitly doing so, proposing the replacement of Roe’s trimester framework with a standard allowing the states to pass any law that “reasonably furthers” a state’s interest in protecting fetal life. (“As you know, I am not in favor of overruling Roe v. Wade,” Justice John Paul Stevens responded at the time, “but if the deed is to be done I would rather see the Court give the case a decent burial instead of tossing it out the window of a fast-moving caboose.”)
Since Planned Parenthood has already replaced Roe’s clear trimester framework with the more nebulous “undue burden” standard—in which abortion opponents must prove that a given restriction does not place an undue burden on women seeking an abortion—Roberts’s task for attacking Roe is even more straightforward. He can simply find that no abortion regulation, including those as extreme as the ones recently passed in the Ohio legislature, constitutes an undue burden.
We cannot be sure that a Court with two or more Trump nominees will issue an opinion explicitly striking down Roe v. Wade. But make no mistake: In that scenario, Roe will not survive in any meaningful sense.