One thing that is certain to come before the new Supreme Court is abortion rights, especially in the wake of states like Ohio passing new “Heartbeat Laws.” So will Roe v. Wade hold up? Maybe not. And for pro-choice Americans, there is actually a lot to worry about.
One of the most impactful consequences of the 2016 election is the loss of the Supreme Court. And one of the things the new Court will likely do is gut reproductive rights.
Republican states across the country have already begun passing laws that are in direct violation of Roe v. Wade. They know these laws are unconstitutional. But they also know their cases will likely end up before a new Supreme Court. And they know too, that because of Trump and this Republican-controlled Congress, they have never been closer to overturning abortion rights.
This week Ohio voted mostly along party lines to approve a new “Heartbeat Bill.” The new law would completely ban abortion once a fetal heartbeat is detected. And because most fetal heartbeats can be found at around six weeks into pregnancy, before many women even realize they are pregnant, this law could virtually make abortion illegal for most Ohio women.
Right now this heartbeat law in unconstitutional. But by the time this case ends up in the SCOTUS, with Trump’s new anti-choice appointments, it may not be.
Pro-choice activists are hoping that the Court will be persuaded by public opinion and precedent. But they also acknowledge that by the end of a Trump presidency chances are slim that national reproductive rights will still be intact.
In this current Court there are five votes to keep Roe…..Liberals Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Stephen Breyer, and the swing voter Anthony Kennedy. Clarence Thomas and Samuel Alito will absolutely vote to overturn. And Trump has promised to fill Scalia’s seat with a pro-life Judge who is guaranteed to vote against Roe.
But here’s the problem. Right now Ginsburg is 83, Breyer is 78, and Kennedy is 80. If even one of them retire, the vote would then be 4 to overturn. That means the decision will come from John Roberts.
The Washington Post says,
“The conservatives on the Court, joined by their new colleagues (if Trump gets one more appointment) could effectively overturn Roe without actually overturning Roe. They could claim that Roe still stands while gutting the standard set out in Planned Parenthood v. Casey, which said that states can’t place an “undue burden” on a woman’s right to choose. They could say that “heartbeat” bans like Ohio’s are fine, as are TRAP laws that make it impossible to open an abortion clinic, as are lengthy waiting periods or requirements that doctors lie to their patients and tell them that if they have an abortion they’ll go mad and die from cancer. With five anti-abortion votes, they could create the functional equivalent of a world without Roe, where abortion is all but illegal in states controlled by Republicans but legal in states controlled by Democrats.”
It’s not just that a woman’s right to choose could be overturned. They can actually make things much worse for women while keeping Roe at least partially intact.
“When you add in the Republican Congress, you could envision a scenario even worse than Roe being overturned. Here’s how it would work:
- With another retirement, the Supreme Court reaches five anti-choice votes.
- Instead of overturning Roe v. Wade, they gut the undue burden standard in Casey.
- Congress then passes a series of incredibly restrictive abortion laws, on things like clinic standards, waiting periods, and a version of Ohio’s “heartbeat” bill, or at least one outlawing abortion after some small period of time, perhaps not the 20 weeks that’s now discussed but 15 or 10.
This is worse because if Roe were simply overturned, each state could make its own rules, which means abortion would still be legal and available in states controlled by Democrats. But under this scenario, every state would live under the rules set by Republicans in Congress, who are almost unanimous in their desire to see abortion rights disappear completely.”
At this point no one knows for sure what the Court will do. But the signs are definitely ominous.