As Donald Trump mulls over a list of potential justices, his promise to reshape the Supreme Court is energizing opponents of abortion and galvanizing some state legislators to advance and defend more restrictions on the practice.
Meanwhile, supporters of abortion rights believe they are in the fight of their lives.
Trump’s unexpected win is a dramatic turn in the debate following this June’s Supreme Court ruling in which Justice Anthony Kennedy voted with the court’s liberals to strike down a Texas law that would have shuttered all but a handful of clinics in the state.
That ruling emboldened both sides: abortion rights activists launched attacks on other state restrictions armed with ammunition from the court’s opinion, while abortion opponents retrenched and supported Senate Republicans who continued to block President Barack Obama’s nomination of Merrick Garland to fill the seat of the late Antonin Scalia.
Trump’s victory means that he will be able to fill Scalia’s seat and perhaps other future vacancies. Some states are taking big strides in their efforts to pass new legislation.
Ohio’s legislature, for example, passed a bill that amounts to a ban on nearly all abortions. The so-called “Heartbeat Bill” would ban abortion in the state from the moment the heartbeat of a fetus can be detected – usually about six weeks. GOP Gov. John Kasich vetoed the measure Tuesday, but signed legislation banning abortions after 20 weeks.
Ohio’s Senate President Keith Faber was frank about the impact of Trump’s victory and the future of the Supreme Court.
“[A] new President, new Supreme Court justice appointees change the dynamic, and that there was a consensus in our caucus to move forward” with the “heartbeat” bill, Faber told reporters.
“I think it has a better change than it did before,” to survive a legal challenge, he said.
Filling Scalia’s seat with a like-minded conservative will restore the balance that existed previously, with Kennedy often acting as the swing justice on the issue. But should Trump be able to replace Kennedy, or one of the four liberals with a conservative, that could dramatically change the game.
When news of the Ohio bill hit twitter, Ed Whelan, a lawyer who is president of the Ethics and Public Policy Center, noted that its survival most likely depended upon Trump getting at least another seat to fill.
“I’d be all for it , except that it has zero chance of surviving judiciary until Trump seats two picks,” Whelan tweeted, noting Kennedy’s presence on the bench.
Trump has floated 21 potential conservative Supreme Court nominees, all meant to appeal to GOP voters before the election. One top contender, Judge William Pryor, has called Roe vs. Wade an “abomination.”
And in an interview with “60 Minutes” last month, Trump was asked whether he was looking to appoint a justice who wanted to overturn Roe v. Wade. “The judges will be pro-life,” he responded and noted that if Roe were ever to be overturned, the issue would go back to the states.
“Not only are Republicans in charge of Congress and the White House, but they are increasingly in control of state governments and state legislatures,” said Denise Burke, vice president of legal affairs at Americans United for Life. “These developments provide us with many opportunities to advance a life affirming agenda”.
Trump’s victory has abortion-rights activists looking at their strategies as well.
Monday, The Center for Reproductive Rights filed a fresh suit against the state of Texas over new regulations that mandate the burial or cremation of embryonic and fetal tissues that result from abortion.
“Texas’ profound disrespect of women’s health and dignity apparently has no bounds,” Amy Hagstrom Miller the president and CEO of Whole Woman’s Health, said in a statement. Hagstrom Miller was the lead plaintiff in last June’s case, and is one of the challengers to the Texas regulations.
Six months ago when she walked out onto the high court’s plaza she felt elated.
“We were the little guy that fought against the big state of Texas and we won,” she said in an interview last week.
Back then, she felt, Kennedy had reaffirmed his commitment to court precedent, the opinion gave her side the necessary ammunition to fight similar copy cat laws in other states, and Hillary Clinton was likely to win the election and shift the court even further to the left on abortion. Hagstrom Miller was not naïve about future challenges. The Texas regulations, in fact, were proposed just days after Whole Woman’s Health v. Hellerstedt was decided.
Those in support of abortion rights note that while the election may have emboldened critics of abortion, it has also energized their side.
Planned Parenthood says, for example, that it has received an outpouring of support in recent weeks.
“Affiliates across the country are being flooded with people wanting to volunteer and we’ve seen more than 315,000 donations with more than 82,000 in Mike Pence’s name,” said Erica Sackin, political communications director for Planned Parenthood Federation of America.
Planned Parenthood, Center for Reproductive Rights and the ACLU have filed suit in Missouri, Alaska and North Carolina.
In North Carolina, the lawsuit targets laws that ban abortion after the 20th week of pregnancy as measured from the woman’s last period. The only exception is for medical emergencies.
In Missouri, the law requires health centers that provide abortions to meet the same requirements as ambulatory surgical centers. It also requires doctors who provide abortions to have various forms of hospital admitting privileges. Those are similar to the provisions of the Texas law that was struck down by the Court.
In Alaska, the law bans outpatient health centers from providing abortions after the first trimester.
Burke said the challenges were to be expected. “Abortion advocates are going to want to test what last June’s Supreme Court decision means,” she said. “We are certainly hopeful the lower courts will look at the evidence and the long track record some of these laws have in protecting women. If they do, they should uphold these laws.”