On Tuesday night, the Republican-controlled Ohio legislature passed a “fetal heartbeat” bill effectively banning abortion after six weeks. As my colleague Ruth Graham has explained, the bill’s sponsors recognize that the measure is unconstitutional under current precedent. But State Senate President Keith Faber is bullish about its chances of passing judicial scrutiny—thanks to the election of Donald Trump. “I think it has a better chance than it did before,” Faber told reporters, explaining that he hopes Trump will appoint enough anti-abortion justices to uphold the legislation should it reach the Supreme Court.
Is Faber correct? The Washington Post’s Paul Waldman thinks he might be. “Roe v. Wade may be doomed,” Waldman declared in a piece on Wednesday. He lays out a chilling scenario: One of the five justices committed to Roe retires; Trump appoints an anti-Roe to replace him or her; a Republican-dominated Congress passes stringent anti-abortion legislation, as do red states; the court rubber-stamps these laws; and Roe’s protections finally fall away altogether.
It’s a disturbing vision, and not an implausible one. But there are a number of compelling reasons why it probably won’t happen.
First, I strongly doubt that any justice who supports Roe will voluntarily retire over the next four years—nor do I think any of them will die. Justices Ruth Bader Ginsburg, Anthony Kennedy, and Stephen Breyer are certainly old, and their actuarial odds are not great. But all three justices stay physically fit and mentally sharp, and barring a true medical catastrophe, all three will likely remain on the bench through 2021. Kennedy, who is 80, might have retired under a more moderate Republican’s presidency—but he surely loathes Trump, who blithely flouts the principles of human dignity that Kennedy has promoted throughout his career. If he can, the justice will stick it out, and his recent leftward drift ensures that the court won’t sign off on any egregious anti-abortion laws.
Second, even if a pro-Roe justice does retire (or die), the court won’t gut abortion rights immediately. Waldman is correct that an anti-abortion majority would almost certainly resist the urge to overturn Roe all at once: The backlash would be too severe, and Chief Justice John Roberts is too obsessed with paying lip service to precedent. Instead, the justices would soften the “undue burden” standard—which bars abortion restrictions that place a substantial obstacle in a woman’s path to terminating her pregnancy before viability—to the point of meaninglessness. A decision weakening the undue burden rule would give conservative lower courts the leeway to affirm the constitutionality of state anti-abortion laws without explicitly overturning Roe. That strategy lets judges reach the result they want without facing the outrage that would result from obliterating Roe outright.
So a blockbuster decision blasting Roe off the books is unlikely to arrive in the near future. In the meantime, conservative judges can chip away at abortion rights, but a future liberal majority can restore whatever protections they strip away. That may be cold comfort for abortion rights advocates, but it means the doomsday scenario remains a distant possibility.
Third, Waldman speculates that a Republican Congress and President Trump might collude to pass a law that stringently restricts abortion in every state. A federal measure cracking down on abortion is quite plausible—but I doubt that even a conservative Supreme Court would uphold it today. Congress has no clear constitutional authority to regulate abortion throughout the country. Whatever power it does have to restrict abortion derives from the Commerce Clause, which permits Congress “to regulate commerce … among the several states.” But conservatives despise broad interpretations of the Commerce Clause, which allow Congress to regulate anything that affects interstate commerce. They prefer a narrow reading, one that confines Congress’ regulatory authority to actual commerce, not just anything tangentially connected to it. The power to regulate abortion obviously does not fit into this cramped understanding of the Commerce Clause.
Republicans don’t really care about states’ rights when they have the opportunity to outlaw stuff they don’t like. But conservative judges do—especially Justice Clarence Thomas. In 2007, Thomas wrote a fascinating opinion suggesting that a federal ban on a late-term abortion procedure might violate the Commerce Clause. If Congress once again attempts to regulate abortion, reproductive rights advocates should raise a Commerce Clause challenge in addition to a traditional “undue burden” challenge. The result could be a splintered decision that invalidates the law on different rationales: Four liberal votes on undue burden, for example, and one on the Commerce Clause. That messy outcome is far from ideal. But the upshot would be a ruling against President Trump’s hypothetical anti-abortion law.
None of this means that women’s reproductive rights aren’t in serious danger. They are, and they will be for as long as Trump is in the White House. But Roe’s demise is no sure thing—and for now, liberals retain the upper hand in the courts. Reproductive rights activists are in for the fight of their lives over the next four years. With a little luck and a lot of work, however, their signature achievement could survive Trump’s presidency largely unscathed.
