How the GOP could basically outlaw abortion — even in blue states
The only thing that will stop them is a high political cost
The new Congress was sworn in on Tuesday, eager to enact a long list of policy changes they hope will move the country as far and quickly to the right as possible. The first battles will probably be fought over repealing the Affordable Care Act and cutting taxes for the wealthy. But before long, they'll get around to abortion — and Americans may not be prepared for the sweeping changes they have in store.
This discussion inevitably centers around Roe v. Wade, the 1973 Supreme Court decision that guaranteed American women's access to abortion. But it goes beyond that, because even if Roe isn't overturned — which it well might be — Republicans will still wage a war on reproductive rights.
Let's start with Roe's status. Right now there are five votes on the Court in favor of keeping it, and at least two and probably three — depending on what Chief Justice John Roberts does — who would like to overturn it. Since Senate Republicans successfully stopped Barack Obama from filling the seat of the late Antonin Scalia, Donald Trump will be appointing a justice as soon as he takes office — and he has promised to appoint a judge who would overturn Roe. Unlike many of his promises, this is one he'll absolutely keep, because conservative activists will make sure he does.
That would maintain the status quo, meaning that Trump only needs one of the five pro-choice justices to retire to get an anti-Roe majority. Three of them are getting on in years: Ruth Bader Ginsburg is 83, Stephen Breyer is 78, and Anthony Kennedy is 80. Assume they remain healthy. While Ginsburg and Breyer would almost certainly wait until a Democratic presidency to retire, we can't necessarily say the same for Kennedy, who is conservative on most legal issues even if he remains a supporter of Roe.
So while Roe is safe until there's one more retirement, there's no telling how long that might be — it could be years from now, or it could be next month. And if you watched the public debate on this issue, you might think that Americans are evenly divided on the question of Roe v. Wade, but they aren't. Polls consistently show around two-thirds of the public opposed to overturning the decision; for instance, in this recent Pew Research Center poll, 69 percent of Americans said it shouldn't be overturned. Even a majority of Republicans (53 percent) felt that way. Yet their party is completely committed to seeing Roe reversed and abortion made illegal.
As for those hoping that Justice Roberts might not vote to overturn Roe, I wouldn't get your hopes up. While Roberts has a keen political sense and is inclined to avoid decisions that cause too much upheaval, he has never come down on the pro-choice side in a single case before the Court, and he has shown that there's virtually no restriction on abortion rights he wouldn't countenance.
We saw that last year in the case of a Texas "TRAP" law (Targeted Regulation of Abortion Providers), which set ridiculous and medically unnecessary hurdles that clinics had to pass before they could perform abortions. Roberts sided with Clarence Thomas and Samuel Alito in wanting to uphold Texas' law, in a manner that could point the way for abortion to remain nominally legal but become all but impossible to obtain. They were in the minority and the law was struck down, but the case showed what kinds of restrictions they're willing to tolerate.
That case was a test of the standard set out in the 1992 case of Planned Parenthood v. Casey, which said that the government can't place an "undue burden" on women's right to get an abortion. The anti-Roe justices believe that there's almost no such thing as a burden that is undue, and even TRAP laws that would force nearly every abortion clinic out of business are perfectly fine.
That shows how a Supreme Court with five anti-Roe justices could, with the cooperation of a Republican Congress, make abortion nearly impossible to get anywhere in the country. That would actually be even worse for reproductive rights than simply overturning Roe, which would leave the matter to each state to decide. If Congress passed national versions of the kinds of restrictions we see in Republican states — TRAP laws, long waiting periods, forcing doctors to lie to their patients and tell them that having an abortion will drive them insane or give them cancer — it could make abortions all but impossible to obtain even in blue states.
Even before they get that fifth justice, you can bet the new Republican Congress is going to see what they can get away with. First they'll "defund" Planned Parenthood, which actually has nothing to do with abortion but concerns the Medicaid reimbursements the group gets for providing other health services to women. Then they'll start seeing what kinds of abortion laws they can pass, like bans on abortions after 20 weeks, or maybe a national waiting period, or some clinic requirements that don't go quite as far as the ones in Texas. Some may get struck down by the Supreme Court, but others might not — at the moment it all depends on Anthony Kennedy's whims, and Congress' willingness to endure the inevitable backlash.
The only thing that will stop them is a high political cost. There's no question where the public stands on this issue; the only question is whether they mobilize to stand in the way of what Republicans are waiting to do.