538 has an article by Amelia Thomson-DeVeaux arguing that it’s unlikely that Donald Trump will be able to get Roe v Wade overturned. I partly agree with her, for reasons I will explain after presenting her argument for that conclusion:
Trump’s victory is good news for anti-abortion advocates, some of whom were initially reluctant to support him but were encouraged by his choice of Pence as his running mate. And Trump’s election is disturbing for abortion-rights advocates who worry that with Republicans in control of both houses of Congress and the presidency for the first time in 10 years, the United States could be poised to return to the pre-Roe era. In the late 1960s and early 1970s, before the 1973 Roe v. Wade decision, abortion was legal in only a handful of states and was available mostly to women who had the means to travel. According to the Guttmacher Institute, a research organization that advocates for abortion rights, 19 states have laws on the books that could be used to restrict abortion if Roe were overturned, and seven have laws that explicitly protect the right to abortion.
Once he takes office, Trump is expected to appoint a justice to fill the late Antonin Scalia’s Supreme Court seat. Legal experts, however, say that even if Trump replaces Scalia with a justice who shares the late conservative’s belief that there is no constitutional right to abortion — and if Trump goes on to fill future vacancies, shifting the court’s balance of power — the precedent in Roe would still probably remain secure. “It would be very extreme to overturn a 43-year-old precedent so soon after Whole Woman’s Health,” said Jessie Hill, a professor at Case Western Reserve University School of Law. She pointed out that even with Trump’s appointee, the five-vote majority that upheld abortion rights in the Whole Woman’s Health decision would remain intact. “You would need two or really even three vacancies to change that math, because I think John Roberts in particular doesn’t want to overturn Roe. Part of it is a concern about public legitimacy, but he’s also just not the type of jurist who likes wholesale overturning precedent.” It’s likelier, she predicted, that if Trump did change the court’s composition, a future ruling would narrow the scope of the decision in Whole Woman’s Health rather than scrapping Roe completely.
I was talking to my friend Dan Ray tonight on this very subject and he presented this scenario, which I think is very plausible. First, let’s note that the 5 vote majority in the Whole Women’s Health case is still intact, so even replacing Scalia with another conservative justice wouldn’t change the balance of power. It would take Trump getting the opportunity to replace Justices Ginsburg, Breyer or Kennedy to do that. So what is likely to happen if that takes place?
I think she’s right that John Roberts likely won’t vote to overturn Roe v Wade, but here’s the thing: He doesn’t have to. All he has to do is write a ruling — and I would expect him to author the majority opinion if this should happen — that so dramatically lowers the “undue burden” standard as to make it essentially meaningless. That would overturn Roe without actually overturning it, leaving the shell intact but making it hollow on the inside. This would gut the decision in Whole Women’s Health and allow states to regulate abortion clinics virtually out of existence.
John Roberts actually wrote an infamous memo for the Reagan administration when he was working for the DOJ suggesting precisely that tactic. It’s not necessary to overturn Roe, he said, and doing so would give a big boost to Democrats. Better, he argued, to leave it in place and make it so hollow that the practical effect is to make the right to choose an abortion non-existent for the overwhelming majority of women (those who aren’t wealthy, of course). I agree with Dan that this is the most likely scenario if they get to replace one of those three justices.