In general, I think your commentary here is accurate. As I share your viewpoint, it is possible that I am not adequately sensitive to its weaknesses. My own lawyering on the subject proceeds from the same assumptions as those you voice here.

But it seems to me that two points need acknowledging:

1. Since Harris v. McRae, 448 U.S. 297 (1980) we have known that this constitutional right women have is not a right to anything, because poor women can be deprived of it. This right is only a right against some interferences with medical procedures some women can afford to have.
2. For more than a generation, this right has been stringently and arbitrarily limited geographically. In 2014, roughly 90% of US counties lacked any provider of abortion services; almost 40% of women aged between 15 and 44 lived in those counties.

So whatever the Trumpian marriage of convenience with the Christian right might produce in the way of future Supreme Court decisions, the "right" that we are engaged in trying to protect has never really been much of a right at all for a large fraction, maybe the majority, of women in America. This implies that those of us who supported it may have been willing to "call it good" in a constitutional sense if those who were like us, lived near us, had our sort of means, had a right against an interference folks like us could afford to overcome. In which case, although our logic may be right and our values defensible, our conduct is open to some quite significant criticism that we ourselves might want to offer.

Roe v. Wade "Trumped?"

-- By ElizabethBrandt - 08 Dec 2016

Background

Unfortunately, there are many women who are not octogenarian newlyweds who have had all of the abortions they will ever need. In 2013, there were over 660,000 abortions in the United States. While this number has been declining for years, it is still a substantial number by any account. The Constitutionally protected right of a woman to rid her body of an unwanted fetus has existed for over 40 years, since Roe v. Wade was decided in 1973.

Donald Trump’s Proposal

Frankly, it’s unclear what Trump’s personal opinion on abortion might be. His position in his book, The America We Deserve, was pro-choice. He echoed the same sentiments on NBC’s Meet the Press. Once the election began, Trump was suddenly anti-abortion and added his voice to the defund Planned Parenthood camp. Upon election, Trump gave a nearly incoherent interview on 60 Minutes in which he said that he would appoint “pro-life” judges to the Supreme Court and that the issue of abortion would be returned to the states. He seemed unconcerned with the prospect of women needing to cross state lines in order to receive the procedure. Never mind that in the same interview, when asked about same-sex marriage, Trump responded that Obergefell, decided just over a year ago, was “settled law.”

Legal Responses and Criticisms

The level of concern from the legal community over the future of Roe is mixed. Since Trump currently only has the authority to appoint one justice, to replace the late Justice Scalia, the immediate composition of the court will remain virtually unchanged. Further, the 40-year precedent of Roe would be politically very difficult for a new court to overturn. Finally, Roe is not particularly relevant anymore given that the trimester framework announced in it was long overturned and the “viability” discussion is no longer the line of jurisprudence given Casey and Whole Women’s Health. Nevertheless, the tagline “overturn Roe v. Wade” likely has little to do with the actual jurisprudence announced in that particular case.

Other legal scholars worry over the advancing ages of Ginsburg, Kennedy, and Breyer. Many point to Pence’s zealous anti-abortion stance and worry that the new administration’s stance leaves little room for disagreement in any form. Even many conservatives have spoken out against Trump’s flippant and muddled statements about abortion. Conservative legal reasoning has long criticized the Supreme Court’s decision in Roe as a reflection of the personal beliefs of the justices rather than a studied announcement of Constitutional law. Trump’s statements seem to reflect the same concern back to them and ultimately amount to, “I’m pro-life, the Justices I appoint will be pro-life, so the court will be pro-life,” stripping Republicans of their rights to claim a higher discipline in Constitutional interpretation.

Likelihood of Abortion Becoming a State Issue

The best legal argument for Roe is its 40-year precedential history. The Supreme Court is inarguably a political institution highly dependent upon our political systems. However, the Supreme Court and the Justices are deeply concerned with the judicial ermine and with their reputation as an institution of justice at least somewhat above the fray of ordinary political battles. Almost immediately upon the decision in Roe, the Court began chipping away at the rights of women announced under the case. It seems unlikely given the current political climate that this trend will slow or reverse within the next four years. However, for the Court to completely disregard a Constitutional right that has existed for nearly half a century and that women have come to rely on would stress the distinction of the Supreme Court as a non-political institution in ways perhaps not yet witnessed.

Beyond the strong precedential value of Roe’s line of jurisprudence, there is a strong argument that the right to privacy that underpins the leading case has long served as an important Constitutional right that helps protect people from the potential tyrannies of the government against which conservatives often rail. The dissolution of federal protection of abortion would provide a nearly unparalleled abridgement of a right in the history of the Court. In all, even if Trump were to appoint a second or even third Justice to the Court, it seems unlikely that such a stark change in jurisprudential reasoning would result.

Worst-Case Scenario Response

Even if Roe is relatively safe, the Court is likely to continue chipping away at both underlying privacy rights and the right of a woman to seek an abortion. Just in 2016, there were 87 different bills related to abortion rights, many of which sought to curtail the right, introduced in Congress. This number does not include the hundreds of such laws introduced and passed by the states. Even in the current circumstances, funding is needed to support organizations working to protect and administer this right to women.

Given the vast amount of misleading and incorrect information that is produced regarding abortion, we need to maintain efforts to create, analyze, and disseminate scientifically backed data and literature about the realities and science behind abortion. A grassroots effort is needed to reach out to communities that do not have access to such information. Perhaps the lessons the Democrats are learning from the recent election can serve to better support these grassroots efforts of education and support, as many of the areas hardest hit by a lack of access to abortion are in deeply red, rural areas.

Finally, should the worst scenario come to pass and Trump’s administration successfully makes abortion into a state issue, funding and infrastructure to support women unable to otherwise afford an abortion will become essential. Perhaps health and employment laws such as FMLA can be flexed to help broaden the net supporting women who will need time off from work to travel for an abortion. Trump may not show any respect for women or women’s health issues, but women ultimately won’t be trumped in this battle.

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