Challenges to Roe v Wade presage battles to come in the Trump era
DONALD TRUMP was once a staunch supporter of abortion rights, declaring in 1999 that he was “pro-choice in every respect”. But Mr Trump campaigned for president as an opponent of Roe v Wade, the Supreme Court’s abortion-rights ruling from 1973. (He had a change of heart when he observed that a child of a friend who “was going to be aborted” was instead brought to term and went on to become a “total superstar, a great, great child”.) In post-election interviews, the president-elect has repeated promises to name pro-life justices to the Supreme Court, starting with a replacement for Antonin Scalia, the justice who died in February. After a couple of nominations, Mr Trump said during a debate in October, Roe will “automatically” be overturned and the question of abortion rights will return to the states.
In recent weeks, several states have signalled how they would handle the matter if the nationwide constitutional standard were to disappear. There is little doubt that many states would quickly criminalise abortion. Fresh from a loss in Whole Woman’s Health v Hellerstedt, a ruling from June that struck down the state’s clinic regulations as thinly disguised attempts to limit abortion access, Texas, for one, would jump at the chance. In the meantime, the Lone Star state has passed a symbolic measure to announce its displeasure toward women who exercise their constitutional right.
On December 19th, the same day the electoral college meets to officially elect Mr Trump as the 45th president, new rules go into effect in Texas. The change, an ostensibly innocuous tweak of the “definition, treatment and disposition of special waste from health-care related facilities”, will require fetal remains from abortions and miscarriages to be interred. No more disposing of the tissue in sanitary landfills, the destination of all other biological waste from hospitals and clinics. The Texas Department of State Health Services will now require fetal remains to be buried.
The tissue-burial idea was the brainchild of Greg Abbott, the Republican governor of Texas. Days after the Supreme Court scolded Texas for cynically citing woman’s health as its excuse for clamping down on abortion clinic regulations—rules that would have shuttered more than half the state’s clinics—Mr Abbott composed a fundraising letter introducing the burial concept. “Human life is not a commodity”, the email stated. Owing to an “imperative” that Texas adopt “higher standards that reflect our respect for the sanctity of life”, Mr Abbott wrote, the state “will require clinics and hospitals to bury or cremate human or fetal remains”. Opponents of the rule, he said, “refuse to recognise ANY rights of the unborn”. Lamenting the “soulless abortion industry” in his state and promising to “turn the tides…in defence of life”, Mr Abbott announced his intention to make Texas “the strongest pro-life state in the nation”.
Unsurprisingly, abortion-rights advocates are expressing alarm at these developments. NARAL Pro-Choice America says the burial bill in Texas “unduly burden[s] both abortion patients and providers without any discernable, proven medical benefit”, thereby violating the Hellerstedt ruling from last summer. The same organisation says the Ohio heartbeat bill is a “drastic” challenge to abortion rights. Planned Parenthood is rallying its troops to oppose both measures, along with laws in Alaska, Missouri and North Carolina that look similar to the onerous regulations the Supreme Court struck down in Hellerstedt.Mr Abbott has a formidable competitor in Ohio, a state whose legislature is apparently emboldened enough by Mr Trump’s victory that it has passed what would be the most restrictive ban since Roe: a prohibition on abortion at the point in pregnancy when a fetal heartbeat can be detected. This threshold means that abortion would be available only until the sixth or seventh week—before some women are even aware they are pregnant. The fetal heartbeat bill is a direct assault on the current constitutional rule permitting abortion until about 24 weeks, the point at which fetuses are “viable”, or able survive outside the womb. The ban makes no exceptions for cases of incest or rape. John Kasich, Ohio’s pro-life governor, has until December 17th to sign or veto the bill; if he does nothing, the bill becomes law—and will immediately trigger lawsuits. Mr Kasich has another option: he can veto the heartbeat bill and sign another bill that bans abortion at 20 weeks. While both are inconsistent with Roe, the latter constitutes a subtler attack.
These are the incipient stirrings of a battle likely to grow after Mr Trump is inaugurated on January 20th. A pro-life ninth justice joining the Supreme Court next year will not, by itself, put Roe in immediate danger: the court’s four liberal members and Anthony Kennedy remain a reliable five-justice bloc that will stand up for Roe and its progeny. But with three members of that group—Mr Kennedy, Stephen Breyer and Ruth Bader Ginsburg—aged 80, 78 and 83, respectively, the future of abortion rights in America is anything but secure.
Source: The Economist