This May Be the End for Reproductive Rights

This May Be the End for Reproductive Rights November 10, 2016

My friend Robin Marty correctly points out that the election of Donald Trump is quite likely to mean the end of Roe v Wade and constitutional protection of the right of women to control their own reproduction.


It’s a new era in America, and Republican Donald Trump is now the going to be the next president of the United States. Plus, with Republican majorities in the House, the Senate, and in two-thirds of the state governors’ mansions, Trump will likely be able to enact his agenda with almost no resistance from Democratic lawmakers.

And yes, that could well mean the end of safe, legal abortion in the country.

The anti-abortion movement faced some of its darkest hours following the death of Supreme Court Justice Antonin Scalia. The sudden loss of the most conservative member of the Court threw a wrench in a decade of intricate planning to pass a number of abortion restrictions in state legislatures with the hope that they would be challenged by abortion providers and eventually make it to the Supreme Court, where justices could rule to overturn Roe v. Wade. The 5–3 decision in Whole Women’s Health v. Hellerstedt made it clear that without a new socially conservative justice, the quest to end abortion through the court system was on hold.

Many Republican senators endangered their reelection chances by refusing to allow President Barack Obama to fill the vacant seat, but it’s a gambit that paid off. Only one Republican incumbent lost his race at this point, with just one Senate race still too close to call, and that means when Trump is sworn into office this January, he will be able to appoint someone from his short list of judges “very much in the mold of Scalia.” That new judge will once again make moderate Justice Anthony Kennedy — who is an inconsistent supporter of abortion rights at best — the swing vote on the court. Meanwhile there will be a number of laws geared toward testing his complicated feelings around the “life of the unborn” working their way up the docket.

But it’s scarier than that. At present, there’s still a 5-4 majority to uphold Roe, even after they replace Scalia with another conservative. But who are the next most likely justices to leave the bench? Ruth Bader Ginsburg, most obviously. She’s in her mid-80s and has already fought pancreatic cancer twice. The second most likely is probably Stephen Breyer. And Kennedy, the shakiest of the pro-choice justices, is next. If Ginsburg or Breyer is replaced by a conservative, Roe is dead in the water. And with Republican control of 2/3 of the states, it will be dead in the water in most states as well. The clock will have been turned back nearly 50 years. Women will die as a result.

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