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Op-ed assesses short, long-term risks to Roe v. Wade under new administration

November 16, 2016 — In an opinion piece for Vox, columnist Emily Crockett explains that while Roe v. Wade "probably wouldn't be overturned in the next four years, and maybe never," the ruling "could very well be in danger in the medium- to long-term" depending on how many justices President-elect Donald Trump "gets to appoint, and depending on which cases the [Supreme] Court decides to hear."

One expert says unlikely Roe will be overturned

Regarding the chance that Roe is safe, Crockett spoke with Julie Rikelman, litigation director at the Center for Reproductive Rights, who said, "'I do not believe that it is likely that Roe v. Wade would be overturned.'"

Rikelman outlined three main reasons for her belief: First, she points to the "power of precedent." Rikelman explained that "Roe v. Wade has now been the law of the land for over 40 years," despite efforts by antiabortion-rights administrations to appoint justices opposed to abortion rights and despite multiple opportunities to review the legal decision.

"In other words, the Court has had opportunities to overturn Roe before. But it hasn't taken them," Crockett writes. Rikelman said one reason behind this trend is that "the institution of the Supreme Court gives a lot of weight to precedent and to something called stare decisis. And that means that 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."

For instance, Crockett notes that Justice Anthony Kennedy, one of "many Supreme Court justices over the years who personally oppose abortion," has upheld 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 this year's Whole Woman's Health v. Hellerstedt, which gave [abortion-rights] advocates a huge victory over restrictive state-level abortion regulations that are designed to force clinics to close."

Crockett writes that while Casey "did weaken Roe v. Wade" by enabling states to pass certain medically unnecessary restrictions on abortion care, the decision "still upheld the fundamental right to an abortion." Rikelman explained that precedent played a key role in that decision, noting that the Supreme Court framed the Casey ruling in recognition that "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."

Rikelman added that many justices, despite their personal stances on various issues, have acted on the belief that "respecting precedent is a huge part of maintaining the integrity of the institution."

Secondly, Rikelman said Roe is likely safe because of the current lineup on the Supreme Court. She explained that even if Trump appoints an abortion-rights opponent to the high court, there will still be "a five-member majority [who] clearly would not vote to overturn Roe: the four liberal justices and Anthony Kennedy, who recently voted with them in Whole Woman's Health to strengthen abortion rights."

Moreover, Rikelman said if the high court's balance shifts, pending the death or retirement of another justice while Trump is in office, "she believes the power of precedent would keep Roe standing even if Trump appoints two justices who are committed to overturning it," Crockett writes.

Lastly, Rikelman noted that even if the Supreme Court had the necessary number of judges willing to overturn Roe, "[t]hey [would] still need the right case that [would] allow them to do that." She 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."

According to Rikelman, the high court typically only hears a case in instances of a circuit split in the lower courts or "when a federal law passes that gets challenged as unconstitutional." Both of those scenarios involve a lengthy process through the courts, Rikelman explained. For instance, she said any lawsuit stemming from one of two possible federal antiabortion-rights measures -- a 20-week abortion ban or a ban on a medically proven method of abortion care, both of which violate Roe -- would "not necessarily move that quickly through the courts."

Another expert details direct and indirect threats to Roe

Crockett also spoke with Jessica Mason Pieklo, an expert on constitutional law and legal analyst for Rewire, who agreed Roe could be safe in the short-term, given the factors Rikelman discussed, but who is "less optimistic that Roe will ultimately survive a Trump-appointed Supreme Court intact."

Mason Pieklo said, "Roe is under threat, both directly and indirectly."

She said if conservative lawmakers pass an unconstitutional abortion ban at the federal level, abortion-rights supporters would have to decide whether to let the law take effect or to challenge the law at the Supreme Court, a potentially risky move if there is a conservative majority on the bench.

Moreover, citing laws in Texas and Mississippi that made abortion inaccessible in some areas, Crockett adds, "The key thing to understand is that Roe v. Wade doesn't have to be directly overturned for its protections to become meaningless." According to Mason Pieklo, either of the possible federal bans -- the 20-week ban or the ban on a medically proven method of abortion -- could potentially "be upheld under Casey's lower standard without actually overturning Roe," Crockett writes.

Crockett continues, "In that scenario, women would still nominally have a right to abortion in America," but the abortion access would be severely curtailed in both scenarios -- women could be forced to undergo unnecessarily risky procedures, cross state or national lines to access care or simply "be out of luck." Crockett concludes, "So in a nutshell, abortion rights aren't doomed for sure ... But they are by no means safe" (Crockett, Vox, 11/14).