During his first interview as president-elect, Donald Trump told correspondent Lesley Stahl on 60 Minutes that while same-sex marriage had been “settled”, he remained committed to appointing pro-life judges to the Supreme Court, insinuating doom for the 1973 landmark Roe. v. Wade ruling. Trump then further reiterated his grossly misinformed stance on abortion access, stating that if Roe v. Wade is overturned, women who would not be able to get an abortion in their home state will just “have to go to another state.”
Despite Trump and his administration’s archaic and ignorant perspective on abortion and their evident war against reproductive rights, it is actually rather unlikely Trump’s team can overturn Roe v. Wade.
Several lawyers have stated publicly that the likelihood of overturning the decision is slim. “He’s got enough female children that are very strong,” Dr. Sarah Weddington, who represented “Jane Roe” in the hallmark case, said in an interview with TMZ. “I can’t imagine them letting the law be overturned.”
Other law experts have also affirmed the notion that Roe v. Wade can endure a Trump presidency. In its 43-year history, the decision has faced numerous anti-choice administrations and somehow managed to survive. That is because the court upholds precedent under the policy of stare decisis, which means once the court issues an opinion, that opinion sticks unless there are legitimate reasons to revisit the case.
And even with the possibility that Trump might appoint a conservative, anti-choice justice to replace Antonin Scalia, who passed away in February, the Supreme Court still might not overturn Roe v. Wade in that circumstance. In matters of the court, personal opinions are traditionally set aside in favor of precedent, especially with cases as significant and perennial as Roe v. Wade. For instance, Justice Anthony Kennedy is obstinately against abortion, yet he didn’t allow his ideological viewpoint to interfere in two cases regarding abortion rights. In both Planned Parenthood v. Casey and Whole Woman’s Health v. Hellerstedt, he upheld abortion rights. As Julie Rikelman, litigation director at the Center for Reproductive Rights, notes in an interview with Vox, several justices throughout the years have said “respecting precedent is a huge part of maintaining the integrity of the institution.”
Currently the Supreme Court has five judges that are pro-choice, but the likelihood of one of those judges passing on is probable given a few are over 80 years old. Yet even if Trump appointed two anti-abortion justices, that doesn’t mean Roe v. Wade’s fate is sealed due to precedent typically taking, well, precedence over political opinions.
But despite these provisions, abortion rights are, by no means, safe.
Trump’s likely conservative Supreme Court could very well limit abortion access and render Roe v. Wade seemingly useless. Congress has been trying to pass anti-abortion bills like the 20-week ban and restriction of abortion based upon the sex of the fetus, and with a Republican majority congress and anti-choice court, these bans might not only carry through, but if challenged in the Supreme Court, may still stand a chance.
But what might be in greater trouble than Roe v. Wade is the very real possibility of instituting a Human Life Amendment.
“The danger of Roe v. Wade being overturned is real but distant,” Jessica Mason Pieklo, legal analyst for Rewire, a reproductive justice news website, told Cosmopolitan. “But if conservatives capture one more state [legislature] entirely, we will have lost the firewall preventing them from introducing, and likely passing, a constitutional amendment creating fetal personhood. That danger is real and immediate.” Essentially, a human life amendment would give legal protections and rights to a fertilized egg. Passing this kind of amendment would effectively criminalize abortion – an end-goal for anti-abortion activists.
So while Roe v. Wade’s legislation might remain virtually intact, all that it stands for in garnering a woman’s right to choose might become obsolete once Trump enters the White House.
Thomson-DeVeaux, Amelia. “Trump Probably Can’t Get Roe v. Wade Overturned.” FiveThirtyEight. N.p., 17 Nov. 2016. Web. 30 Nov. 2016.
Marty, Robin. “10 Things Every Woman Should Know About Birth Control and Abortion Access Under Trump.” Cosmopolitan. N.p., 16 Nov. 2016. Web. 30 Nov. 2016.
Crockett, Emily. “Roe v. Wade Isn’t Doomed under Trump. But It’s Not Safe, Either.” Vox. N.p., 11 Nov. 2016. Web. 30 Nov. 2016.