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Donald Trump was staunchly pro-choice until he sought to become President Donald Trump. From that moment on, a centerpiece of his campaign was a promise to do whatever he could to ensure that the 1973 supreme court’s landmark decision in Roe v Wade that guaranteed a woman’s right to an abortion would be overturned. He has kept his promise and his base loves him for it. He undoubtedly believes that his strong and now unwavering anti-abortion stance will go a long way to ensuring his re-election in 2020.
How did he keep his promise? The answer is not complicated. He did it by consistently appointing judges to the federal courts that he believes are committed to the goal of overturning Roe. He has succeeded in reshaping the supreme court through his appointments of Justices Neil Gorsuch and Brett Kavanaugh and has now appointed more than 100 judges to the courts of appeals and the district courts, many of whom have been openly hostile to abortion rights in their academic writings, public speeches or judicial decisions. He now expects these judges to achieve the big prize – the overturning of Roe v Wade.
But that is not the only way in which he has succeeded. His constant rallying cry of overturning Roe and elimination abortion rights has undoubtedly emboldened state legislators to take action that they might not have dared to take in the previous 46 years since Roe was decided in 1973. We have just witnessed Alabama pass a law that forbids abortions at any time in a pregnancy, unless it is required to save the life of the mother. Even if the pregnancy resulted from rape or incest, the pregnancy may not be terminated without risking criminal prosecution of any doctor who participated in the procedure. Seven other states have recently passed restrictive abortion laws.
Georgia, Ohio, Kentucky and Mississippi have also passed so-called “fetal heartbeat” legislation which prohibits abortion at six to eight weeks – often before a woman even knows she is pregnant. Two other states, Utah and Arkansas, passed bills prohibiting abortions after 18 weeks – well short of the time frame endorsed in Roe v Wade, and the subsequent decision in Planned Parenthood of Southeastern Pennsylvania v Casey, which held that abortions are permitted until a fetus is viable outside the womb.
Many believe that these states are hoping for – indeed inviting – a lawsuit challenging these laws that will eventually make its way to the supreme court. And when these inevitable lawsuits, already being promised by pro-choice advocacy groups reach the courts, what will happen? Until recently, I would have said that respect for precedent would protect Roe v Wade from being overturned, but I now have doubts about that given two recent judicial decisions.
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The first case is June Medical Services v Dr Rebekah Gee. In this case the court of appeals for the fifth circuit overturned the decision of a trial court which had held that a Louisiana statute that required any doctor performing an abortion to have admitting privileges at a hospital located not further than 30 miles from the location of the abortion unduly burdened a woman’s right to an abortion and was therefore unconstitutional. Despite the fact that the supreme court had ruled in 2016 in a nearly identical case from Texas, Whole Woman’s Health v Hellerstedt, that such a statute was unconstitutional, the fifth circuit (in a 2-1 decision) essentially ignored that binding precedent and ruled that the Louisiana statute passed constitutional muster. The abortion providers are asking the supreme court to hear the case and overturn the decision of the fifth circuit.
In appealing to the supreme court to reverse the fifth circuit, friends of the court (amici curiae) have argued that respect for the long-held principle of stare decisis, respect for precedent requires reversal. As far back as 1833, supreme court justice Joseph Story wrote: “The [judicial decision] is not alone considered as decided and settled; but the principles of the decision are held, as precedents and authority, to bind future cases of the same nature.” In a long line of cases since then, the supreme court has reaffirmed this basic principle. Such cases include, for example, Cooper v Aaron, which prevented Arkansas from enforcing legislation that conflicted with Brown v Board of Education, stating that “the interpretation of the 14th amendment by this court in the Brown case is the supreme law of the land”. The court has not hesitated to chastise lower courts that have deviated from this principle. In Hutto v Davis, a 1982 opinion, the court wrote: “Unless we wish anarchy to prevail within the federal judicial system, a precedent of this court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.” Obviously the fifth circuit was not paying attention. It will be of great interest to see if the supreme court goes along with the fifth circuit in ignoring its own precedent of just three years ago.
Perhaps the second case is a greater harbinger as to whether respect for precedent will save Roe v Wade. In a largely ignored opinion issued on 13 May of this year, Franchise Tax Board of California v Hyatt, the supreme court overturned its own precedent issued in a 1979 decision. The vote was 5-4 – the majority consisting of Justices John Roberts, Clarence Thomas, Samuel Alito, Gorsuch and Kavanaugh. In his opinion for the majority, Thomas wrote that stare decisis is not an inexorable command.
In a dissent written by Justice Stephen Breyer, and joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, Breyer not so subtly sounded the alarm for the future of Roe v Wade. He wrote: “It is … dangerous to overrule a decision only because five Members of a later court, come to agree with earlier dissenters on a difficult legal question … Today’s decision can only cause one to wonder which cases the court will overrule next.”
We don’t need to wonder for long. The gameplan is clear. Take the challenges to the recent spate of anti-abortion state laws to the supreme court and the same five justices may well decide that Roe v Wade was wrongly decided and must be overruled. I can only hope that will not happen. Perhaps one or more of the bloc of five will decide that respect for the rule of law is more important than satisfying the politically driven effort to overturn Roe, particularly in view of the fact that 70% of Americans support the right of a woman to choose.
Shira A Scheindlin is a former US district judge for the southern district of New York, where she served for 22 years. She was appointed by Bill Clinton. She is a member of the executive committee of the board of the Lawyers’ Committee for Civil Rights Under Law