What Trump might mean for Roe v. Wade (and what Roe v. Wade really means)
During the final debate the two presidential candidates were directly asked if they would appoint justices who will overturn Roe v. Wade. Donald Trump said he would appoint up to three pro-life justices who would overturn Roe “immediately.”
Well, no, that’s not quite how the Supreme Court works. New justices don’t take the bench and just start voting on all cases that came before. So what would a Trump nominee (or three) actually mean for reproductive freedom?
While reproductive freedom is a broad term encompassing concepts from birth control access to freedom from racist eugenics programs, our national conversations center around its most known iteration – the right to abortion. Our abortion conversation, in turn, centers around Roe v. Wade. But if all you know is Roe, you don’t really understand where abortion rights lie, and how easily our next SCOTUS member(s) might impact those rights. To understand abortion, and why the right to one is the most precarious it has even been since Roe, you need to understand two key cases that came before and after: Griswold v. Connecticut and Planned Parenthood v. Casey.
When the first Planned Parenthood in Connecticut opened its doors in Hartford in 1935, they were still subject to the Comstock Act, which made contraception illegal. The clinic served women who had no access to gynecologists, and the Comstock Act made providing said services incredibly difficult. It wasn’t until Estelle Griswold, the Executive Director of Planed Parenthood, opened a new clinic in 1961 and was arrested, tried, found guilty and fined that the Comstock Act made it up to the Supreme Court for review.
Griswold’s crime was facilitating birth control advice and prescriptions to married women. And this is where things get really interesting.
In Griswold SCOTUS decided that the Bill of Rights, though never expressing an explicit right to privacy, contains a privacy right none the less. This privacy right, the justices believed, is embedded in the very DNA of the Bill of Rights.
This idea that we as American citizens have a right to privacy and to be free from government intrusion was articulated in Griswold and continued to spread. In 1972 it extended the right to birth control access to unmarried people. In 1973 the privacy right extended to the right to abortion in Roe v. Wade. It still reverberates in the 21st century, like when the privacy right was extended to protect the rights of individuals to have consenting same-sex relations, when a Texas sodomy ban was overturned in 2003.
Roe remains the law of the land because SCOTUS, as it exists today, accepts two premises: that the Bill of Rights includes the right to privacy, and the right to privacy includes abortion.
That sounds nice and, importantly, reassuring for reproductive rights. But the reality is that Roe has changed since it was decided in 1973. Today, when laws regulating abortion are passed, we do not review their legitimacy through the basic human right to privacy and reproductive freedom. Rather, we ask if the restrictions are not that bad. This framework, where some level of burden is presumed not just reasonable but a matter of course, subtly (and I argue insidiously) shifts the focus, and it’s all thanks to Planned Parenthood v. Casey.
In 1992, the privacy doctrine was in full effect and Roe remained the law of the land. SCOTUS had its first female justice on the bench. A new abortion challenge had arisen, but surely given these circumstances, the right to abortion was safe, even with the recent retirement of two liberal justices and their replacement by George Bush Sr.
In 1982 Pennsylvania passed the Pennsylvania Abortion Control Act, five provisions of which were at the heart of Casey (the requirements concerned informed consent, spousal consent, parental consent, the definition of medical emergency, and reporting requirements).
The court upheld Roe in what was seen as a victory for reproductive rights. A closer examination of Casey, however, reveals how even seeming victories can cause damage.
Casey held that, yes, women have the right to abortion. But Sandra Day O’Connor, writing the opinion, changed the way we conceive of that right in two major ways.
Roe used a trimester approach to determine abortion rights. Under Roe, states were forbidden from regulating pregnancy during the first trimester, and as pregnancy progressed, so did a state’s ability to regulate abortion. This was all connected to when a fetus was considered viable (at third trimester, or 28 weeks).
By 1992 the justices in Casey believed that medical advances changed the age of viability. Now, they said, fetuses could be viable at 22 weeks, well before third trimester. SCOTUS ruled states could now regulate or proscribe abortion at the point of viability (i.e., 22 weeks).
That wasn’t the only change.
Though it’s a bit more legalese than the average person wants to suffer through, it’s important to understand how SCOTUS reviews laws that discriminate against people or burden fundamental rights. SCOTUS traditionally uses three broad “tests” to decide if a law may stand – these are called rational basis review, intermediate scrutiny, and strict scrutiny. Strict scrutiny is like it sounds – it means you look at the law very closely, giving it the most stringent overview, and upholding it only if it is “necessary” to achieve a “compelling government objective.” As you can imagine, laws that receive strict scrutiny are often overturned. It is a difficult burden to overcome – it’s like the unreasonable doubt of constitutional law.
So when SCOTUS changed the standard for reviewing abortion restrictions from strict scrutiny to a flimsy, less stringent standard of review (which literally only applies to abortion restrictions), they radically altered the right to abortion in a way that changed Roe so fundamentally, it remains questionable as to if Roe should still be the name we throw around when we discuss abortion rights.
The new, weaker test no longer asked if the restriction was necessary for a compelling government objective. Instead the new test asked: does this abortion restriction place a substantial obstacle in the path of a woman seeking abortion of a nonviable fetus? As long as it doesn’t, the law can stand.
Changing the test didn’t just crack open the door for more heavily regulating abortion – it blew the door off the hinges. If it isn’t immediately apparent, consider that the undue burden test led to the first time ever an abortion restriction was upheld despite having no provision for saving the life of the mother (Gonzales v. Carhart in 2007). Or simply look at the numbers when it comes to access the average low-income woman, particularly in southern states, has to abortion clinics.
The fifty-one years since Griswold bring us to where we are now – the 2016 presidential election season.
As Griswold and Casey demonstrate, our reproductive rights are a lot more nuanced than our public understanding of Roe would indicate. We fear Roe being overturned while overlooking the damage a subtle shift, like a new test, can cause. In 2015, nearly 400 anti-abortion bills were introduced in state legislatures throughout the country. The newest SCOTUS member(s) will play a huge role – with consequences potentially lasting a generation – in deciding if any one of these bills might be the one that leads us to further weaken or overturn Roe. And that newest member will potentially be selected by Donald Trump, a chilling reality I can only hope will motivate us to show up at the ballot box on November 8th.