November 10, 2016 — The election of a conservative president, along with "[conservative] majorities in the House, the Senate, and in two-thirds of the state governors' mansions ... could well mean the end of safe, legal abortion in the country," columnist Robin Marty writes in an opinion piece for Cosmopolitan.
First, Marty discusses the presidential and congressional elections' implications for abortion rights at the Supreme Court level. She explains that the recent death of Justice Antonin Scalia, an abortion-rights opponent, "threw a wrench in a decade of intricate planning to pass a number of abortion restrictions in state legislatures with the hope that they would be challenged by abortion providers and eventually make it to the Supreme Court." According to Marty, "The 5-3 decision in Whole Women's Health v. Hellerstedt made it clear that without a new socially conservative justice, the quest to end abortion through the court system was on hold."
However, given that conservative senators "refus[ed] to allow President Barack Obama to fill [Scalia's] vacant seat," president-elect Donald Trump will now "be able to appoint someone from his short list of judges 'very much in the mold of Scalia,'" Marty writes. Noting that "there will be a number of [antiabortion-rights] laws ... working their way up the docket," Marty writes that the appointment of antiabortion-rights justices could potentially result in Roe v. Wade being overturned.
Further, Marty notes Trump made several antiabortion-rights campaign promises, including "pledges to defund Planned Parenthood, to make the Hyde Amendment ... a permanent rule ... and [to] sign a federal ban on abortion at 22 weeks gestation [or 20 weeks post-fertilization] into law." Marty writes, "If Trump follows through on his pledge to sign such a bill, which [conservatives] now ha[ve] the majorities in the House and Senate to pass, abortion providers will have to go to court or else the right to end a pregnancy will stop at just 22 weeks." She notes that such a ban is "a direct conflict with Roe, which forbids any total bans on abortion prior to viability." According to Marty, since "there will be no [liberal] veto to worry about," such a ban "will be drafted and passed quickly, likely as soon as the new Congress is sworn in."
The ban would have a "major impact on the ability to access legal terminations," which would "be exacerbated by Trump's" plan to defund Planned Parenthood, Marty states. Citing similar defunding efforts in Texas, Marty writes that "removing family planning dollars from any organization that provides or refers for abortions causes a crisis when it comes to accessing contraceptive services -- especially in rural areas." According to Marty, "The two ... policies could create a perfect storm for later abortions or [unintended] full-term births, as well as clandestine, self-induced abortions." She adds that while Trump "reversed course after being criticized when he suggested women be punished if they obtain illegal abortions, prosecutors are doing just that anyway."
Marty continues, "The inability to access birth control easily -- an issue that will be impacted not just by defunding Planned Parenthood but when Trump and the [conservative] Congress follow through on their promise to repeal the Affordable Care Act [PL 111-148], which mandated no co-pay birth control in insurance programs -- plus the likelihood that it will be nearly impossible to get an abortion after 20 weeks will both have immediate effects on women."
Moreover, whereas federal efforts to restrict abortion rights and contraceptive access previously faced a presidential veto, such efforts will no longer face that threat under a conservative president, Marty writes. She concludes, "With President Trump, a [conservative] Congress, and at least 33 [conservative] governors working together, there may not be anyone who can stop them, and no state that will not be affected" (Marty, Cosmopolitan, 11/9).
Op-ed highlights how Supreme Court lineup could affect abortion rights
In related news, Erwin Chemerinsky, dean and a professor of the University of California-Irvine School of Law, in a Los Angeles Times opinion piece discusses how "[t]he election of Donald Trump as president means that there will be a conservative Supreme Court for years and maybe decades to come, [although] how much the court will move to the right depends on the health and stamina of Justices Ruth Bader Ginsburg, Anthony Kennedy and Stephen Breyer."
Chemerinsky notes that even if Trump nominates a replacement for Scalia right away, "the process of vetting and hearings means that the court will not have a ninth justice as it hears oral arguments through April," meaning that there will probably "be a significant number of 4-4 decisions again." However, Chemerinsky writes that should Ginsberg, Kennedy or Breyer -- all of whom are 78 or older -- retire while Trump is in a position to appoint another conservative justice, "there will be a majority for radical changes in constitutional law."
For instance, Chemerinsky explains "[t]here almost certainly will be a majority to overrule Roe vs. Wade and allow states to prohibit abortions." Citing his belief that Justices Clarence Thomas, John Roberts and Samuel Alito "are definite votes to overrule Roe," Chemerinsky writes, "Abortion would quickly become illegal in about half the states." According to Chemerinsky, other issues vulnerable under a conservative majority in the Supreme Court include affirmative action, campaign finance laws, gun restrictions and protections between church and state.
"A president's longest lasting legacy is whom he appoints to the Supreme Court and the federal bench," Chemerinsky writes, concluding, "The election of Trump means that there will be a conservative Supreme Court for a long time to come, and it will affect the most important and intimate aspects of our lives" (Chemerinsky, Los Angeles Times, 11/9).