The Trump-era Supreme Court could erode abortion access with a 'death by 1,000 cuts'
Rebecca Harrington
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(US President Donald Trump.Alex Wong/Getty Images; Business Insider)
With control of the presidency, the House of Representatives, the Senate, and at least one Supreme Court seat to fill, the GOP has the opportunity to make sweeping changes in the next four years.
Since opposing abortion is part of the Republican Party's platform, Americans can expect a reproductive-rights fight will be part of the agenda.
On his fourth day in office, President Donald Trump signed an executive order reinstating a gag order keeping nongovernmental organizations that receive federal funding from discussing abortion abroad.
While Trump once supported abortion, he has since reversed his position, saying in his first interview after winning the election that he wants to appoint "pro-life" judges with the goal of overturning Roe v. Wade. His highly conservative nominee to fill the vacant Supreme Court seat, Neil Gorsuch, is expected to try to carry out this mission.
The landmark Supreme Court case, decided in 1973, gave women a constitutional right to safe, legal abortions — and the justices have upheld that precedent for over four decades.
'Death by 1,000 cuts'
Roe would likely fall in one of two ways, according to Dawn Johnsen, a constitutional scholar from Indiana University and the legal director of NARAL Pro-Choice America from 1988 to 1993.
The most drastic way the court could get rid of Roe would be to overturn the case. The more likely scenario, however, would see the court letting Roe stand but incrementally upholding laws that restrict access, making abortions impossible to get — rendering the procedure virtually illegal over time.
(Demonstrators celebrate at the US Supreme Court after the court struck down a Texas law imposing strict regulations on abortion doctors and facilities that its critics contended were specifically designed to shut down clinics in Washington, June 27, 2016.Kevin Lamarque/Reuters)
Glenn Cohen, a health-law expert and professor at Harvard Law School, said two kinds of laws provide the most likely paths for SCOTUS to overturn or undermine Roe.
The first are known as fetal-pain laws. They aim to ban abortions when a fetus can feel pain, which legislators typically claim is after 20 weeks, though scientists disagree.
The Supreme Court has ruled that abortions are legal up to viability — when a fetus can survive on its own outside the womb — but has neglected to define exactly when that is, and hasn't taken on a fetal-pain statute, Cohen said.
The second kind of law is what reproductive rights activists call Targeted Restrictions on Abortion Providers, or TRAP laws, that impose strict requirements on abortion clinics and providers.
A TRAP law was at the heart of a major case taken up by the court this past year, Whole Woman's Health v. Hellerstedt. The law in question required abortion clinics in Texas to meet strict standards, from the exact size of the examination rooms to admission privileges doctors had to secure for admitting patients to local hospitals.
In June, the Supreme Court ruled in a 5-3 decision that the law "provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an 'undue burden' on their constitutional right to do so."
Presumably, that means the high court has a 5-3 majority at the moment that supports abortion, Cohen said. If it were to switch course and uphold similar laws over time, the court could chip away at abortion access in the US.
The gradual erosion of Roe v. Wade is a much more likely scenario for diminishing abortion access, according to Cohen, because Chief Justice John Roberts often plays the "long game." Roberts hasn't explicitly come out against Roe or abortion (as is tradition with justices), but he has said he respects the precedence of Roe yet supported abortion restrictions in Supreme Court cases while on the bench.
"Roberts, in particular, has often preferred the method of 'death by 1,000 cuts' to get rid of decisions he does not like — narrow it, make small changes, et cetera., in a series of cases," Cohen told Business Insider. "He is very honorably committed to the idea of the integrity of the court, and my own sense is he would not favor a dramatic action that would cause half the country to lose faith in the court."
What would happen if Roe were overturned?
The short answer: Abortion rights would be up to the states.
If Roe fell, 13 states have laws on the books banning abortion, so the practice would be illegal there immediately. Other states would likely act quickly to pass similar "trigger" laws.
As Trump said in his first interview as president, that would mean women in those states would "have to go to another state" to get an abortion.
Restrictive abortion policies at the state-level tend to have a "hugely disproportionate impact on poor women, immigrant women, women of color, and women in rural areas," said Stephanie Toti, the lead attorney on the Whole Woman's Health case and a senior counsel at the Center for Reproductive Rights.
Your ZIP code will start to determine whether you have access to safe abortion.
That would likely become even more apparent if Roe fell.
"What we would end up with is a country where there is a patchwork of rights depending on where you live," Toti told Business Insider. "Your ZIP code will start to determine whether you have access to safe abortion, and other reproductive health services, or not.
"As we learned from our recent experience in Texas, while the very restrictive clinic shut down law was in effect in that state, not every woman can afford to travel out of state to access abortion care," she added.
BI Graphics_Abortion Clinics Per State (2) final
(The most recent nationwide data available.Alex Wong/Getty Images; Business Insider)
Research coordinated by the University of Texas supports Toti's assertion. After Texas' law went into effect in 2013, the number of clinics providing abortions in the state dropped in half, from 41 to 18, as of November 2015 — increasing the number of women who lived over 50 miles from a clinic in Texas from 1.2 million to 4.2 million.
How likely is it that Roe will be overturned?
Toti said she doesn't think Roe is in "any immediate jeopardy," largely because both the Supreme Court and a majority of Americans support abortion.
Pew Research Center polls have found that 59% of US adults today support the legality of abortion in general and 69% want the Supreme Court to uphold Roe — both numbers that have risen over time.
The 49-year-old judge was appointed to the 10th Circuit US Court of Appeals by President George W. Bush in 2006. While he's never ruled directly on abortion, he did vote against the so-called contraception mandate in the Affordable Care Act in the Hobby Lobby decision before it went up to the Supreme Court and a majority of justices agreed with Gorsuch's opinion.
Even if the Senate approves Gorsuch's nomination, Toti said, the court will likely still have a 5-4 majority that would uphold Roe.
"Less than four months ago, a majority of Supreme Court justices reaffirmed more than four decades of precedent holding that every woman has a fundamental, constitutional right to access abortion. We are confident that the court will not back away from that," Toti said. "Regardless of how the current vacancy is filled, that majority decision stands as controlling precedent."
It will likely be some time before Gorsuch can actively participate in cases, as well. Toti estimated that the lengthy Senate approval process will sideline the new justice from deciding on cases until at least October 2017. And even if Gorsuch is aggressively anti-Roe, Trump would still need another justice to retire or die to shift the balance, an unlikely scenario in the next four years.
Not everyone is as optimistic as Toti. If Trump is elected for a second term, the chances of him choosing another justice go up — as do the chances of Roe falling.
Johnsen, the constitutional law expert, pointed to Vice President Mike Pence, who has enacted some of the strictest antiabortion laws in the country as governor of Indiana, as evidence of which way the political winds are blowing.
"I am very pessimistic about it, and that's because I'm thinking about the range of ways Roe can fall that would not require the Supreme Court to actually say, 'We are overruling Roe v. Wade,'" Johnsen said. "We've seen the kinds of laws that would shut clinics, and ban abortions for reasons, and force women to be interrogated by their doctors — and that all could be upheld without the Supreme Court actually saying, 'We're overruling Roe v. Wade.'"
Abortion rights advocates prepare for a fight
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(An antiabortion protester demonstrates outside the US Supreme Court building on the first day of the court's new term in Washington, October 5, 2015.REUTERS/Jonathan Ernst)
"We will continue to fight for a country in which all women have access to safe abortion, contraception, and safe pregnancy care," Toti said. "We haven't met that ideal yet. We don't have that situation now. There are women in many parts of the country who face lots of challenges, but we are going to keep pushing to move forward and to make things better, and we won't allow backsliding."
Erica Sackin, director of political communications for Planned Parenthood, told Business Insider that the healthcare provider is "absolutely gearing up for a huge fight," and that the wave of donations they received underline how many people support upholding Roe — including those who voted for Trump.
"We've seen a number of laws across the country that try to take away women's access to safe, legal abortions. At the heart of it, these laws are unpopular, and they are dangerous," Sackin said. "For the people who come to Planned Parenthood, for the people who need to access abortion, this isn't about politics. It's about basic healthcare."
