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The fate of Roe v. Wade depends on more than Neil Gorsuch

How confirming Trump’s Supreme Court nominee would, and wouldn’t, affect legal abortion rights.

Neil Gorsuch being sworn in for his current position on the US Court Of Appeals For The Tenth Circuit, 2006 Denver Post Photo By John Prieto

President Trump’s Supreme Court nominee, Neil Gorsuch, is something of a black box when it comes to abortion rights.

It seems much more likely than not that he personally opposes abortion. He supports the kind of expansive religious liberty protections that can sometimes interfere with reproductive and other civil rights. He was one of the original judges on the 2013 Hobby Lobby case, which expanded the right of religious employers to limit their employees’ access to birth control coverage, before the case went to the Supreme Court. He opposes legal euthanasia due to his belief in the sanctity of all human life.

But that doesn’t tell us much about how Gorsuch, now a federal appeals court judge on the 10th Circuit, would vote if the Court ever heard a case that could overturn Roe v. Wade. As perennial swing justice Anthony Kennedy has taught us, opposing abortion personally doesn’t necessarily mean you’ll vote to curtail legal abortion rights. Plus, Gorsuch would replace Antonin Scalia, a fellow conservative, which wouldn’t change the balance of the Court.

If you’re wondering what Gorsuch’s confirmation would actually mean for Roe v. Wade or the legal right to abortion in America, Gorsuch’s own views on Roe — which we simply don’t know much about at this point — are only a piece of the puzzle. The future of Roe will be determined by the overall balance of the Court and the cases it decides to take up.

Could Roe v. Wade actually be overturned under Trump?

The short answer is that Roe probably wouldn’t be overturned in the next four years, and maybe never.

But depending on how many justices Trump gets to appoint, and depending on which cases the Court decides to hear, Roe could very well be in danger in the medium to long term.

Realistically speaking, overturning Roe would require Trump to get the chance to nominate two, or probably three, very conservative justices who are really determined to overturn Roe v. Wade.

It’s not enough for those justices to merely oppose abortion personally. They’d have to oppose it enough that they’d be willing to flout four decades of court precedent — which most Supreme Court justices are very hesitant to do in general.

Even if you did have the bench to overturn Roe, though, you’d need the Court to take up the right case that could do it. That could take years, and might not happen at all.

There’s still definitely a chance of a pro-choice doomsday scenario — an ultra-conservative anti-Roe majority, which then gets handed the perfect case it needs to strike down Roe for good.

But there’s an even better chance of a less obvious disaster for the pro-choice movement: not an outright reversal of Roe, but some other future case that weakens its protections so much that Roe might as well have been overturned.

Why Roe v. Wade is probably (probably) safe

Julie Rikelman, litigation director at the Center for Reproductive Rights, put it plainly to Vox in a November interview: “I do not believe that it is likely that Roe v. Wade would be overturned,” she said.

There are three major reasons for this, she said:

The power of precedent: Roe v. Wade has now been the law of the land for over 40 years,” Rikelman said. “It has lasted through a number of anti-choice administrations, including those who vowed to put justices on the court that would overturn Roe v. Wade. And in those over 40 years, many cases have come up to the Supreme Court where there was a request for Roe v. Wade to be overturned, but it wasn't.”

In other words, the Court has had opportunities to overturn Roe before. But it hasn’t taken them.

A key reason why, Rikelman said, is that precedent is powerful: “When the Supreme Court has interpreted the Constitution and issued an opinion, that opinion is supposed to remain in place unless there are very, very, very, very good reasons for revisiting it.”

There have been many Supreme Court justices over the years who personally oppose abortion. One of them is Kennedy, who is typically the “swing vote” between the liberal and conservative factions on the current Court.

But Kennedy has voted to uphold abortion rights in two essential cases: 1992’s Planned Parenthood v. Casey, which many abortion opponents had hoped would be the case to overturn Roe, and Whole Woman’s Health v. Hellerstedt in 2016, which gave pro-choice advocates a huge victory over restrictive state-level abortion regulations that are designed to force clinics to close.

Casey, it’s important to note, did weaken Roe v. Wade somewhat, and opened the door for states to pass restrictive laws like the ones Whole Woman’s Health later struck down.

But with Casey, the Court still upheld the fundamental right to an abortion. And precedent is a key reason why, Rikelman said — because “decades of women had come of age and organized their lives with the understanding that they have this basic right to make personal decisions, and to control their own bodies, and to be able to have jobs, and be able to participate in the social and economic life of the nation.”

The alignment of the current Court: Even after adding Gorsuch, the Court would still have a five-member majority that clearly would not vote to overturn Roe: the four liberal justices and Kennedy, who recently voted with them to strengthen abortion rights in Whole Woman’s Health.

If one of those five members retires or dies while Trump is in office, the balance could shift. But Rikelman said she believes the power of precedent would keep Roe standing even if Trump appoints two justices who are committed to overturning it.

It’s doubtful that conservative Chief Justice John Roberts, for instance, would actually vote to overturn Roe entirely. He certainly voted to weaken it by siding against the pro-choice ruling in Whole Woman’s Health — but stripping women of all the constitutional rights to abortion they’ve had in America for four decades would be a significant factor for his legacy.

Three new conservative justices could be a different story. But again, they’d have to be three justices very committed to overturning Roe, which could pose challenges to their being confirmed by the Senate.

The difficulty and rarity of actually getting the Court to hear a case: So let’s say Trump has appointed two or three ultra-conservative justices, and that two or three of the other conservatives on the Court are willing to join them and set precedent on fire by overturning Roe v. Wade.

They still need to hear the right case that will allow them to do that.

“A case can't just sort of show up two weeks from now at the Supreme Court that would allow it to overturn Roe v. Wade,” Rikelman said. “There are rules about when the Supreme Court takes cases, and it takes very, very few of the cases that come before it — a tiny percentage. And so it could be many years before a case even came in front of the Court that would give it the opportunity to overturn Roe v. Wade.”

Generally speaking, the Supreme Court only takes a case if one of two things happens, Rikelman said.

One is a “circuit split,” when two lower federal courts of appeals disagree on an issue of law. That’s why the Court took up Whole Woman’s Health in the first place, Rikelman said. Every federal appeals court except one, the Fifth Circuit Court, which governs Texas, Louisiana, and Mississippi, had struck down abortion restrictions that were similar to the ones Texas passed in 2013.

So there was a conflict that the Court had to resolve, which it did — but it took three years after Texas passed its anti-abortion laws for that ruling to come down.

The other scenario is much more likely with a Republican-controlled Congress and Trump as president: the passage of a federal law that gets challenged as unconstitutional.

Republicans in Congress have been trying for several years to pass a national 20-week abortion ban. It’s also very possible, given the latest anti-abortion lawmaking trends at the state level, that Congress would try to pass a national ban on dilation and extraction (D&E), the safest and most common method of performing a second-trimester abortion. A D&E ban wouldn’t explicitly outlaw second-trimester abortion, but the practical effect would be almost the same.

Both of those laws would fly in the face of Roe because they would ban abortion, either outright or effectively, before a fetus is viable. So either of those laws would probably be challenged.

Even in this circumstance, though, “the cases do not necessarily move that quickly through the courts,” Rikelman said. “The application can take a long time.”

Why Roe v. Wade might be in trouble

Jessica Mason Pieklo, a constitutional law expert and legal analyst for the reproductive rights news site Rewire, agrees with everything Rikelman said about precedent, the Court’s current pro-choice majority, and the barriers to actually getting the Court to hear a case.

For all of these reasons, Mason Pieklo agrees that Roe will probably be fine in the short term. But longer term, she’s less optimistic that Roe will ultimately survive a Trump-appointed Supreme Court intact.

Roe is under threat, both directly and indirectly,” she said.

The key thing to understand is that Roe v. Wade doesn’t have to be directly overturned for its protections to become meaningless. We’ve already seen hints of what this looks like in states like Texas that regulated abortion out of existence in certain areas, or states like Mississippi where regulations are so stringent that there’s only one abortion clinic left in the entire state.

But from a national perspective, take the example above where Congress passes a 20-week abortion ban or a D&E ban and Trump signs it, Mason Pieklo said.

Pro-choice advocates have two options if that happens. They can either let the law go into effect and see abortion rights for American women dramatically reduced nationwide — or they can challenge the law at the Supreme Court. But if Trump gets the five-plus-member ultra-conservative majority he’s angling for, a challenge like that could be either very risky or doomed from the start.

To further complicate matters, Mason Pieklo said, it’s possible that either of those anti-abortion laws — a 20-week ban or a D&E ban — could be upheld under Casey’s lower standard without actually overturning Roe.

In that scenario, women would still nominally have a right to abortion in America. But only to a very particular point.

If a 20-week ban is upheld, that would mean that if a woman discovers a devastating fetal anomaly at her 20-week ultrasound, she’d have to leave the country to end the pregnancy.

And if a D&E ban is upheld, a woman who doesn’t find out that she’s pregnant until she’s more than 12 weeks along, or can’t get the money together for an abortion until then, might need to cross state lines. Or she would have to leave the country. Or she would have to find a doctor willing to perform a more dangerous, but still legal, second-trimester procedure on her. Or she would just be out of luck.

So in a nutshell, Roe v. Wade, and abortion rights more generally, isn’t doomed for sure if Gorsuch gets confirmed, and even if Trump gets to appoint more judges like him. But they are by no means safe.

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