November 20, 2017
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Is Roe v. Wade Safe?

By Rosie Spinks, GOOD.is


LET’S ADDRESS the biggest knot in our collective uterus since November 9: Will Roe v. Wade be overturned, seriously jeopardizing the right to a legal abortion in the United States? President-elect Donald Trump—who picked the aggressively anti-choice Mike Pence as his running mate—says he plans to fill the open Supreme Court seat with a justice who will vote to reverse the ruling, remanding a woman’s constitutional right to privacy under the Fourteenth Amendment. In other words, it’s possible, but there are a number of obstacles standing in the way.

"The court, as currently constituted, believes that any burden on reproductive access must serve to improve women’s health—and not act as a mere deterrent."

For starters, adding one conservative justice to replace the late Antonin Scalia will still leave the court with a 5-4 majority in favor of reproductive rights. In 2016, the court upheld those rights with a 5-3 ruling in the landmark case of Whole Woman’s Health v. Hellerstedt, reversing a series of Texas laws that severely restricted access to abortions. The decision marked a highly significant interpretation of the rights protected by Roe v. Wade, according to Paula Abrams, a constitutional law professor emerita at Lewis & Clark Law School in Portland, Oregon, who specializes in reproductive rights. This ruling indicates the court, as currently constituted, believes that any burden on reproductive access must serve to improve women’s health—and not act as a mere deterrent. Therefore, any attempt by Congress to restrict abortion—should it be legally challenged—will be judged by that existing standard. “Take heart in the strong precedent established by Whole Woman’s Health,” Abrams said. “The decision comes out strongly protective of women’s reproductive health, and it would be highly controversial, to say the least, for the Supreme Court to so rapidly depart from the precedent established in a decision of this magnitude.”

The circumstances become more precarious should another justice either retire or die during Trump’s term. The average age of a Supreme Court justice is 70.4 years, meaning there is a morbid reality we must confront, as the loss of another justice could conceivably put the court in a position where Roe v. Wade could be argued again. But should this happen in the second half of Trump’s term (after the 2018 midterm elections), there’s no guarantee a different Senate makeup would approve such a judge. Furthermore, there would have to be an apt case that directly challenges Roe v. Wade and four justices would need to agree to hear it.

You might take solace in the fact that the Supreme Court is still held to the same ethical and judicial standards as it was pre-election. By design, the Supreme Court was not intended to be a political institution. Overturning its own precedents to cater to the whims of an unconventional president and a raucous national mood would undermine the court’s legitimacy and legacy.

WHAT ELSE IS ON THE VAGENDA?

The United States already trails behind other developed nations in regards to women’s reproductive health, but if Vice President Pence’s gubernatorial history is any indication, things could get a lot worse. As governor of Indiana, Pence signed eight anti-abortion bills into law in less than four years, including legislation that denied termination in cases of fetal anomalies and prevented private insurance from covering the procedure—unless it was a case of incest, rape, or the woman stood to lose her life.

Trump’s campaign platform called for repealing the Affordable Care Act—which would require an act of Congress—but he has since waffled on whether that will come to fruition, indicating he would like to keep elements of it. Should he follow through, the cost of contraception and other preventive services (cancer screenings, mammograms, Pap smears) could skyrocket.

WHAT HAPPENS TO PLANNED PARENTHOOD?

The reproductive health organization has seen its donations and volunteer network dramatically increase as a direct result of Trump’s election. Though it’s realistic about the looming threat to public funding from a Republican Congress—43 percent of Planned Parenthood’s financial backing comes from the government—the organization also has faith in its ability to defend itself. “We have seen time and time again that when access to care is under attack, our supporters stand up and fight back,” a spokesman told us.

WHAT ABOUT (AFFORDABLE) BIRTH CONTROL?

No cost contraception under the ACA was a huge step forward in terms of improving access to adequate reproductive health care. According to Planned Parenthood, repealing this provision of the law would result in 55 million women losing these preventive services, which also include STI tests and cancer screenings.

In the meantime, the Center for Reproductive Rights recommends the online resource bedsider.org for finding local birth control options. Other activists say stocking up on the morning-after pill, which can be purchased over the counter and has a shelf life of several years, is a prudent move in case it’s not as readily available or costs rise in the next four years.