After Neil Gorsuch is confirmed Roe v. Wade be overturned one dead justice away from being overturned

Pro-life and anti-abortion activists converge in front of the Supreme Court on Jan. 27, 2017. AP


If you care about the future of abortion rights, now is a good time to worry.

A sweeping Supreme Court victory for pro-choice advocates last summer was quickly overrun by worries brought on by the election of Donald Trump and the announcement of his proposed Supreme Court nominee, Neil Gorsuch.

Those concerned about women’s reproductive rights might wonder whether an overruling of Roe v. Wade is on the horizon, now that President Trump’s nominee looks to be all but unstoppable.

Vice President Mike Pence’s decision to speak at the anti-abortion March for Life in January only added to the discomfort of abortion rights supporters.

But the real danger may be not so much that things will radically change – it’s that they’ll remain the same. From my vantage point as a constitutional law professor who also litigates reproductive rights cases, the landscape looks about as treacherous as it ever has.
A short-lived victory?

In Whole Woman’s Health v. Hellerstedt, the Supreme Court decided last summer that if a state law is so difficult to comply with that it has the effect of shutting down abortion clinics without really helping women or making abortions safer, then that law violates the constitutional right to abortion.

Whole Woman’s Health provides an example of how this legal test works. The Supreme Court considered a Texas law that imposed two kinds of regulations on abortion clinics. First, the law mandated that abortion clinics meet the same building and staffing standards as mini-hospitals, a very expensive proposition. Second, the law required clinic doctors to be able to admit patients to a local hospital – a medically unnecessary qualification that can be hard to get in a state where there is widespread opposition to abortion. The state claimed it was imposing all of these regulations to protect patients’ health and safety. The Supreme Court concluded that the law actually did very little to protect women but a whole lot to shut down clinics. In a 5-3 decision, it found the Texas law to be unconstitutional.

According to the Alan Guttmacher Institute, a nonprofit organization that promotes reproductive rights, 338 laws imposing new abortion restrictions have been adopted by states just since 2010. This number equals about 30 percent of the total number of abortion restrictions currently on the books in this country.

You might think that the Whole Woman’s Health case would have slowed down the pace of anti-abortion laws.

It didn’t. Anti-abortion groups have behaved as though the Supreme Court opinion changed nothing, continuing to push for the same types of laws as they had before.

Indeed, 18 states passed 50 new pieces of anti-abortion legislation in 2016. For example, three states passed laws requiring fetuses and embryos to be buried or cremated after an abortion. Four states passed measures banning the most common abortion procedure after 13 weeks. These laws have the effect of forcing women seeking second-trimester abortions to have a riskier procedure than the one that was banned.

The restrictions don’t target abortion alone. Since July 2015, 15 states have acted to defund Planned Parenthood, a major provider of preventive health care services.

And these statistics do not include the many states bill that are still only proposed or pending.
The future of the courtNeil Gorsuch, Trump’s nominee for the Supreme Court. AP Photo/J. Scott Applewhite

Although the Supreme Court’s decision in Whole Woman’s Health provides reproductive rights advocates with a powerful tool to challenge the new onslaught of legislative measures, it’s hardly a perfect solution. A legal test that requires balancing benefits and burdens leaves a lot of room for a judge to place a thumb on the scale.

It doesn’t help matters that the Supreme Court left a number of questions unanswered in Whole Woman’s Health. There is still no consensus, for example, on whether state laws requiring burial and cremation for fetuses are constitutional.

This is where the Supreme Court comes into play, since at least some of these new laws will likely end up in front of it. So how can we expect Gorsuch to rule? In a speech at my law school last year, Gorsuch praised his predecessor, Justice Antonin Scalia, who was a fierce opponent of abortion rights. Gorsuch also argued, following in Scalia’s footsteps, that “judges should be in the business of declaring what the law is using the traditional tools of interpretation, rather than pronouncing the law as they might wish it to be in light of their own political views.” This judicial philosophy, called textualism, holds that judges should focus only on the words of the Constitution, and what they meant at the time they were adopted – largely ignoring the ways in which society has changed and leaving both their own politics and popular opinion and beliefs out of the equation.

Yet, the current test for the constitutionality of abortion regulations gives broad discretion to individual judges to decide how to weigh a state’s claimed interest against the woman’s right to access abortion. And, as I have shown in a recent law review article, a judge’s underlying views about abortion are often evident in their decisions when abortion is involved – even in cases that are primarily about something else, like free speech rights or religious freedom. The impact of an individual’s political views is likely to be particularly strong at the Supreme Court level, where justices are not strictly bound to follow prior decisions and where the disputes are, almost by definition, difficult, uncharted legal territory.

It’s hard to discern much from Gorsuch’s history, which exemplifies narrow, doctrinal decision-making. In two cases, he voted against abortion rights groups but on highly technical grounds.

Perhaps more to the point, Gorsuch has been quite welcoming to religious employers’ claims to be exempt from providing their employees with contraception, recently joining an opinion in Little Sisters of the Poor v. Burwell that argued it was too great a burden on a religious employer to even have to file paperwork opting out of the legal mandate. One can probably infer from these cases, and Gorsuch’s admiration for Scalia’s judicial philosophy, that the right to an abortion does not have a prominent place within his understanding of the Constitution.

Still, Roe v. Wade itself is probably safe for now.

Overruling is unlikely, given that Justice Anthony Kennedy will remain the swing vote even after the current vacancy on the Supreme Court is filled. Kennedy has supported the core of the right to choose. The real turning point will likely come if and when Trump gets to make a second nomination to the Supreme Court. That day may not be so far off, since three of the current justices – all moderates or liberals – are over 75 years old.

What is more immediately at risk is the long-term fate of abortion clinics, women’s access to safe abortion and even the availability of other forms of reproductive health care. In other words, what is at risk is everything other than Roe v. Wade.