On the 48th anniversary of the Supreme Court decision in Roe v. Wade that recognized a federal constitutional right to choose to have an abortion, there is a sense among reproductive-rights advocates that a major disaster was averted by Joe Biden’s win over Donald Trump. A second Trump term might well have given him an opportunity to further strengthen the Court’s conservative, presumably anti-abortion majority, which he helped build with three Justices — perhaps by replacing the 82-year-old pro-choice justice Stephen Breyer, and certainly by giving older conservative justices like Clarence Thomas and Samuel Alito an opportunity to retire in favor of younger jurists with similar views. Trump would also have been sure to keep the executive branch of the federal government relentlessly on the side of those who sought to curb and ultimately destroy reproductive rights, while promoting and facilitating the state-level attacks on abortion rights and opportunities that were a constant of his first term.
It was certainly a change of pace from the past four years to see the new president and vice-president release a pro-choice statement on the Roe anniversary:
The Biden-Harris Administration is committed to codifying Roe v. Wade and appointing judges that respect foundational precedents like Roe. We are also committed to ensuring that we work to eliminate maternal and infant health disparities, increase access to contraception, and support families economically so that all parents can raise their families with dignity. This commitment extends to our critical work on health outcomes around the world.
The statement was a reminder that despite his past sympathy for certain elements of the anti-abortion agenda, Joe Biden is now firmly in the pro-choice camp along with nearly all Democrats in Congress. But it also reflected the limits of what they can accomplish under current governing arrangements. “Codifying Roe v. Wade” means enacting a federal statute preempting state abortion laws to ensure that if the Supreme Court does reverse Roe, the law of the land would not materially change so long as that statute stayed in place. But without elimination of the Senate filibuster, enacting such a statute is not remotely feasible. And that’s one of the reasons Mitch McConnell is demanding a “power-sharing” deal that rules out any attack on the filibuster. More immediately, breaths are being held on both sides of the abortion-policy barricades as legislators await clear signals of what the confirmation of Amy Coney Barrett to the late Ruth Bader Ginsburg’s seat on the Supreme Court will mean for Roe, amid what is uniformly expected to be at least some erosion of the precedents set by it and its 1992 reformulation, Planned Parenthood v. Casey. We have every reason to assume that six justices on the Court (John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and now Barrett) are hostile to abortion rights. It’s unclear, however, how quickly and thoroughly they may proceed in undermining precedents they all recognize (even the straightforwardly anti-choice Clarence Thomas, who is least reticent about favoring their reversal). Chief Justice Roberts has, famously, been concerned about the Court’s moving too quickly on politically charged issues, including abortion; he single-handedly (though on very narrow grounds) ensured that a Louisiana law that would have had a decisively negative effect on access to abortion services was struck down last year.
But that was before Barrett joined the Court. Will the new weight of the anti-abortion majority lead to a quickening of judicial activism against abortion rights, regardless of what Roberts would prefer? That’s not at all clear.
One big question is what strategy the anti-abortion movement will choose to pursue. It has for years alternated between efforts to restrict or ban late-term abortions (which, while rare, are also controversial) or chip away at abortion access and full-on assaults on basic abortion rights, like the “heartbeat bills” and the even more extreme bans enacted by a wave of Republican-controlled states in the past few years. It’s possible the changes on the Court will embolden those responsible for “teeing up” landmark decisions through state legislation. But it’s also possible enemies of abortion rights will fail to properly coordinate between the states and the federal courts (where, moreover, pro-choice precedents will remain binding until SCOTUS erodes or overturns them).
Pro-choice activists will await these developments nervously, accomplishing what they can through Biden-administration executive actions and litigation under existing precedents so long as they last. Soon after the Biden-Harris ticket’s victory became clear, some progressives began publicly asking Justice Breyer to retire so that a Democratic president could appoint a younger justice and a Democratic majority in the Senate could confirm her or him (a Republican reconquest of the Senate in 2022 is always possible). And grassroots support for filibuster reform (and with it the codification of Roe Biden and Harris have promised to pursue) will continue, particularly if Republican obstruction persuades Democratic “centrists” like Joe Manchin and Kyrsten Sinema to reconsider their current opposition to that step.
Until the presidential-election results became certain, defenders of abortion rights had every reason to wonder if Roe as we have known it would survive to its 50th anniversary. It’s still in peril, but the worst threat has been repelled.