In naming Colorado-based appellate Judge Neil Gorsuch as his candidate to fill the late Justice Antonin Scalia’s seat on the U.S. Supreme Court, President Donald Trump said Tuesday night that he’d promised to nominate “the very best judge in the country,” someone who “respects laws” and “loves our Constitution.”
Yet Trump has also said he would appoint someone to the high court who would be willing to overturn the court’s 44-year-old landmark ruling that legalized abortion, saying during a debate that “will happen automatically in my opinion because I’m putting pro-life justices on the Court.”
In the wake of the nomination, Marcia Greenberger, co-founder of the National Women’s Law Center, did not mince words. “The nation is fast learning that to ignore even the most extreme of President Trump’s promises comes at our peril. So we take seriously his promise to nominate a justice who will vote to overturn Roe v. Wade; he told us to count on it, and we do,” she said. “On behalf of the women in this country, we take the president at his word, we will make no mistakes: The National Women’s Law Center opposes the nomination of Judge Neil Gorsuch.”
Gorsuch, who serves on the 10th U.S. Circuit Court of Appeals, is seen as a reliably conservative jurist, and he has had occasion to weigh in on issues involving women’s reproductive rights — notably siding with religious groups who opposed the Affordable Care Act’s contraceptive mandate. “All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others,” Gorsuch wrote in a concurring opinion in the case Burwell v. Hobby Lobby Stores. The “ACA’s mandate requires [the plaintiffs] to violate their religious faith by forcing them to lend an impermissible degree of assistance to conduct their religion teaches to be gravely wrong. No one before us disputes that the mandate compels [them] to underwrite payments for drugs or devices that can have the effect of destroying a fertilized human egg.”
More recently, Gorsuch disagreed with his colleagues’ decision to block Utah Governor Gary Herbert’s attempt to defund Planned Parenthood. Herbert’s actions were prompted by the release of video collected surreptitiously by anti-abortion activists that they claimed revealed Planned Parenthood officials engaging in the sale of aborted fetal tissue. (Similar attempts by officials in other states have also been blocked by the courts.)
Although he hasn’t written directly about abortion, Gorsuch has condemned assisted suicide and euthanasia in terms that could make defenders of reproductive rights wary: “All human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong,” he wrote.
Gorsuch’s record leaves open an important question for women: Would he uphold more than four-decades of precedent or would he vote to overturn Roe? And even if he would, does that mean he’ll have the chance to do so?
On January 22, 1973, the U.S. Supreme Court announced its decision in Roe v. Wade, which legalized abortion. “Roe’s basic holding is that states cannot criminalize abortion. That’s the basic holding. And so the fact that you can’t criminalize it means, necessarily, that you have a right to do it,” said Carol Sanger, a professor at Columbia Law School. “So, you have the right to choose; you can’t have that choice taken away from you.”
The high court has made some significant tweaks to Roe in the intervening years, but it has consistently held that although the word “abortion” isn’t in the country’s founding document, the right of women to seek abortion care is nonetheless protected by the Constitution under the due process and equal protection clauses of the 14th Amendment.
Now, however, with the rise of Trump and his nominee Gorsuch, the very future of abortion rights could be in jeopardy — though exactly how and when remains unclear.
Experts fluent in reproductive rights law have expressed a variety of worries and doubts about whether and to what extend a woman’s right to define her reproductive fate may be emaciated by the Trump administration and its judicial legacy.
In order to understand the possible threat to Roe, it is important to understand two additional, significant abortion cases, including the Supreme Court’s 1992 ruling in a case styled Planned Parenthood of Southeastern Pennsylvania v. Casey. It was the first substantive challenge to the right to abortion since Roe was decided.
By conventional wisdom, at the time the court’s make up could have made an overturning of Roe possible, and that’s what the litigators seeking to uphold a handful of Pennsylvania restrictions on abortion access (including one that would require a married woman to notify her husband of her intent to abort) were after. The court did not bite.
The court anchored its plurality opinion on precedence: “Liberty finds no refuge in a jurisprudence of doubt.” Indeed, the right to abortion was nearly two decades old at that time and more than a generation of women had come to understand that they held the right to abortion of an unwanted pregnancy.
Still the court did away with certain aspects of Roe. Specifically, the court said that states could regulate abortion – even in its earliest stages – to further an interest in “potential life” and under the idea that such regulations were intended to increase health and safety. Importantly, this ruling gave states the ability to ban abortion after the point of viability – generally understood to be at about 24 weeks. The court also concluded that regulation of earlier term abortions would be fine so long as it did not unduly burden a woman seeking access.
Casey unleashed a wave of regulations on abortion that continue to this day – from pre-procedure counseling, to waiting periods, to mandatory ultrasounds, and even arbitrary bans on abortion at a given number of weeks. Since 2011, the Center for Reproductive Rights has tracked 2,100 bills seeking to restrict access and more than 300 of those have become law, without much pushback from the courts.
That is at least until June 2016, when the Supreme Court issued another notable abortion-related ruling in the Texas case Whole Woman’s Health v. Hellerstedt. In that case, the court again upheld the right to abortion while simultaneously pushing back on the proliferation of restrictions under Casey, ruling that restrictions were fine, but only if states could bring actual facts to back up their stated need for them. In Whole Woman’s Health the state of Texas could not do that and the restrictions were shot down.
It is precisely because of this history that some legal experts believe Roe is safe. “As we just saw, just recently, the Supreme Court reaffirmed the core principles of Roe and Casey and that’s by a five-justice majority that is still there on the court,” said Zoe Levine, a staff attorney with the CRR. “And not only would anything interfering with that fundamental abortion right fly in the face of recent decisions, but it’s built on 40-plus years of precedent, so you know, to have the court suddenly change course on something so essential would really be a shocking development.”
Sanger agrees that the concept of precedent is among the reasons not to fear the impending demise of Roe. “You don’t overturn precedent just because you have different political views,” she said. “That’s kind of the basis of stare decisis” – the legal principle that the court should abide by its decided cases – “we want people to know what they legally can and can’t do with some security – and not just know what they can do, but also to plan their lives.”
In more immediate jeopardy, suggests Sanger, is the ruling in Whole Woman’s Health, which could more easily be attacked by degrees, with the court variously deciding that individual states have proven their restrictions are on solid footing. “There is immediate damage, damage that can be done well before any so-called overturning of Roe.”
David Cohen, a law professor at Drexel University, agrees that there are perhaps more immediate threats to reproductive rights – the global gag rule signed by Trump last week, for example, and the continuing proliferation of restrictions passed in the states – but he also believes “the threat to Roe is a serious one right now.”
And he doesn’t think that fidelity to precedent would mean anything to a determined court. “With enough justices who believe that precedent doesn’t matter Roe could be overturned if the right case is before them,” he said. He notes that the court’s history is littered with reversals of course – “and a lot of advancement in this country has come because they’ve gotten rid of horrible precedent,” he said. “So they’re not constrained in that regard in any meaningful way when they feel that they need to act.”
Consider the landmark Brown v. Board of Education for example, which found segregated schools unconstitutional, overturning the nearly 60-year-old decision in Plessy v. Ferguson, which concluded that racial segregation in accommodations did not violate equal protection. Or take the court’s decision in Gideon v. Wainwright, which reversed a 21-year-old ruling that denied the appointment of counsel to indigent criminal defendants.
“So we like it when they disregard bad precedent,” he said. “If they think Roe is one of those bad precedents that needs to be disregarded they’re going to do it.”
That is unlikely to happen in the immediate future, with just one Trump-appointed judge. Currently there is a five-justice majority upholding Roe, notably including Justice Anthony Kennedy, for whom Gorsuch worked as a clerk. That relationship has given rise to some speculation that Gorsuch was nominated in part to assuage concerns that the 80-year-old Kennedy might have about the kind of judges Trump would nominate and thus might prod him to retire at the end of the current term, which ends in June.
If that were to happen – or if either of the two reliably liberal, and aging Justices Stephen Breyer and Ruth Bader Ginsburg, 78 and 83 respectively, were to leave before Trump does – the court could be squarely in position to overturn Roe, a move that could deny reproductive autonomy for generations of women to come.
Trump has so far been dismissive about exactly what this would mean, brushing off the impact by saying that the regulation of abortion would simply revert to the states. And, in fact, if Roe were overturned it would return to the individual states the power to criminalize women seeking abortion and the doctors who provide that care. And there is ample evidence to suggest this would happen.
According to a report released in January by the CRR, access to abortion would be in grave jeopardy in at least 22 states, which would be poised to “ban abortion outright.” Access would be “at risk of loss” in additional 12 states; in just 17 states the “right to abortion appears secure” if Roe were to fall.
Practically speaking, the result would be that women of means would still be able to access abortion by traveling across state lines, while the poorest and most vulnerable would be effectively shut out, facing what amounts to state-compelled motherhood.
“The specter of the fall of Roe is horrifying,” said Elizabeth Barnes, president of The Women’s Centers, which operates abortion clinics in Georgia, Pennsylvania, Connecticut and New Jersey. Without constitutional protection the right to access would be “heavily dependent on income and zip code.”