The retirement of Justice Anthony Kennedy, one of five members of the Supreme Court who reaffirmed basic abortion rights in the Whole Women’s Health v. Hellerstedt case in 2016, should send a chill through anyone who believes in and/or relies on constitutionally guaranteed reproductive rights. Donald Trump, whose alliance with conservative evangelical voters depends significantly on his promise to seek the reversal of Roe v. Wade and a clock turned back to 1973 when states determined abortion policy, is certain to appoint a Kennedy successor who will move the Court in that direction. And a regular drumbeat of state laws banning abortions at ever-earlier stages of pregnancy has provided a glimpse of what Republican-controlled state governments have in mind should they be liberated by the judiciary to take control of women’s bodies once again. Most recently Louisiana enacted legislation banning abortions after 15 weeks of pregnancy, and Iowa adopted a ban on abortions after a fetal heartbeat is detected (usually six weeks after conception). These new state measures are patently at odds with Roe, which prohibits state abortion restrictions prior to fetal “viability” — the point at which a fetus can survive outside the womb, normally placed at 24 to 26 weeks after conception.
Such laws are aimed at setting up a challenge to Roe if the Supreme Court lurches to the right — which is now an imminent possibility — and keeping the right-to-life ground troops energized and optimistic, envisioning the long-awaited day when most abortions are prohibited.
Under the new Court that could be about to emerge, some of these restrictive laws could be converted from dead letters to lively developments on a new battleground over abortion policy centered in state legislatures rather than the courts.
So let’s game this out: Are pro-life activists on solid ground in their calculation that a major legal shift on abortion rights could be at hand? And, if Roe were overturned, what would that actually look like?
Roe Probably Won’t Be Overturned Immediately
The conventional wisdom is that SCOTUS isn’t going to completely reverse the decisions establishing a constitutional right to an abortion, particularly by the sort of narrow 5–4 margin that might become available in the near future. That would require quite a challenge to the doctrine of stare decisis, or the binding nature of constitutional precedents, which becomes more important as such precedents are allowed to stand. It is often said that precedent (and the need for consensus when it is upset) is particularly important to Chief Justice John Roberts. But on the other hand, this is a tendency, not a rule, as Amelia Thomson-DeVeaux has observed:
Chief Justice John Roberts also prizes unity and consensus, but on his court, the share of precedent-changing cases decided by a slim one-vote majority is higher than it has been under any other chief justice.
Aside from the long-established Roe precedent (reaffirmed emphatically in the landmark 1992 decision Planned Parenthood v. Casey), another problem with a sudden and complete reversal is that the constitutional right to choose was just revalidated in the aforementioned Whole Women’s Health v. Hellerstedt decision, which involved intrusive abortion-clinic regulations in Texas.
But difficult as it might be to overturn Roe overnight, it is equally difficult to imagine the precedent perpetually surviving the kind of conservative majority likely to be created if Donald Trump appoints another Federalist Society–vetted jurist to replace Kennedy. Totally aside from its impact on abortion law, a reversal of Roe would be a signature moment for a whole generation of conservative legal thinkers hoping that earlier progressive legal precedents dating back to the New Deal can be reconsidered and ultimately discarded. One of them said this about Trump’s chief adviser on judicial appointments:
No one has been more dedicated to the enterprise of building a Supreme Court that will overturn Roe v. Wade than the Federalist Society’s Leonard Leo.
Still, predicting the timing of any Roe reversal is tricky. A Court ready to abandon reproductive rights must still find the right case in the right circumstances, and that could take years. Clearly, though, a major reason conservative states are passing all the restrictive laws we are seeing this year is to increase the odds of a promising challenge to Roe arriving at SCOTUS as soon as is possible.
A Likelier Scenario: New State-Level Abortion Restrictions
Should a new five-justice majority in favor of backtracking on abortion rights decide against a leap right back to the pre-Roe constitutional law of 1973, several options are available. The easiest (if sneakiest) would be to leave Roe and Casey alone and simply reverse the very recent Hellerstedt decision.
That decision shut down state efforts to enact TRAP (Targeted Regulation of Abortion Providers) laws designed to force clinics and physicians offering abortion services out of business via very burdensome regulations and extraneous requirements. A green light to TRAP laws — presumably by ruling that they did not impose an “undue burden” on the right to choose (the standard set out in Planned Parenthood v. Casey) could significantly erode actual access to abortion, especially in conservative states where there aren’t a lot of providers anyway, without a direct reversal of decisions establishing a constitutional right to abortion.
Deferring to the views of conservative red-state legislators about what sorts of “protections” women need from abortion providers would also create a firm foundation for all sorts of paternalistic second-guessing of reproductive decisions.
Abortion Restrictions Could Be Allowed Earlier in Pregnancy
Alternatively, a conservative Court could remove Roe’s “viability” standard for the moment when government’s interest in fetal life can override a woman’s right to an abortion (again, usually deemed to occur at 24 to 26 weeks of pregnancy). Abortion opponents would very much like to adopt a different standard that focuses on intrauterine fetal development rather than viability. And so an amazing 21 states (all of them with Republican-controlled legislatures) have adopted bans on abortions occurring at about 20 weeks after conception, based on the medically spurious claim that the fetus can feel pain at that point. A 20-week ban has also been proposed repeatedly in Congress, and has repeatedly been blocked by the Senate.
Since only an estimated 1.3 percent of abortions occur after 20 weeks, the anti-abortion strategy here is to dislodge the viability standard, making ever-earlier points in pregnancy possible junctures for abortion restrictions based on the alleged interests of the unborn (e.g., Iowa’s new six-weeks-after-conception time frame, based on when a fetal heartbeat is sometimes discernible). SCOTUS could choose to open that door without a full-on reversal of Roe and Casey.
Exceptions for When the Mother’s Life Is at Risk Could Go
At the same time, a conservative Court would very likely attack the principle of current constitutional law that even allowable abortion restrictions must include exceptions for situations where the life and health of the woman involved are threatened by a pregnancy carried to term. Since the determination of health requirements naturally depends on the judgment of medical personnel rather than, say, conservative state legislators, the health exception has always been treated by anti-abortion advocates as a loophole that enables abortion-on-demand right up to the moment of birth. It is very unlikely to survive review by a more conservative Court.
Abortion May Be Outlawed Everywhere — But Only If the Court Gets Much More Conservative
Many, perhaps most, right-to-life activists would prefer a SCOTUS decision that flipped Roe on its head and established the fetus as a “person” under the 14th Amendment, thereby making it impossible for states to allow abortions. Indeed, a constitutional amendment establishing fetal rights has been a regular feature of Republican Party platforms over the years.
But with the possible exceptions of Clarence Thomas (who is invested in the “natural law” approach to the Constitution that the personhood movement supports) and Neil Gorsuch (who has written about the significance of legally established “personhood” in the context of euthanasia), there’s no reason to believe the Court’s conservatives would move in that revolutionary direction as a matter of judicial fiat. So without three more justices who share that mind-set — a prospect that is not likely to materialize anytime soon — this scenario isn’t really in the cards.
In a Post-Roe Landscape, Constant Abortion Battles Would Be the New Normal
In any of the scenarios where the Supreme Court expands state regulatory powers over abortion, it will become a much bigger, and perhaps dominant political issue in most of the states, at least initially. Anti-abortion advocates will begin to implement state laws that are no longer symbolic, and devise new laws to fill absolutely every newly exposed gap in the constitutional wall of protection for the right to choose. It won’t all be a one-way street, of course: the prominence of reproductive rights in the constellation of progressive political causes will rise enormously, perhaps leading in some blue states to types of public support for abortion as a basic women’s health service that don’t exist today. And both sides will maneuver to preempt state laws through congressional statutes, which in turn will make abortion policy an even bigger deal in presidential and congressional contests than it already is. Meanwhile, assuming SCOTUS adopts an incremental approach to eroding reproductive rights, attention will be focused on future Court decisions affecting abortion more than ever.
The one thing that’s clear is that the era of women being able to count on legal, if not convenient or affordable, abortions in every part of the country will be over in a post-Roe environment, and with it the argument that abortion policy is an annoying “social issue” that should be put aside so that politicians and policy-makers can focus on “real” issues like the economy. With one SCOTUS appointment and one decision, that could all change, and we could enter a period of abortion-policy activism unlike anything America has seen in decades.