Sunday marks the 44th anniversary of Roe v. Wade, the Supreme Court decision that first recognized that the Constitution protects one’s right to end a pregnancy. Many abortion rights supporters are predicting Roe‘s demise under Donald Trump, given the anti-abortion figures in his administration and his promises to overturn the decision so states could choose whether to make abortion a crime – which would return us to a time when only women with the money to travel out of state could get one.
But in reality, Roe is a much stronger legal precedent than Trump and the pundits would have you believe. It’s a decades-old ruling long accepted as settled law by most of the legal establishment and supported by the majority of the public. More importantly, it was correctly decided: The Constitution does protect the right to abortion. That matters because the way we talk about the law changes it. Here’s what you need to know.
How does the Constitution protect abortion?
The protection of liberty in the due process clauses of the Fifth and 14th Amendments includes the more specific rights to bodily integrity and to autonomy in decisions about procreation and family. Though conservatives like to claim the Roe Court invented the right to abortion out of thin air, the decision in Planned Parenthood v. Casey – the 1992 case upholding Roe that governs abortion law today – notes that these are rights that the Supreme Court had recognized long before Roe, and has continued to recognize since.
For example, your right to bodily integrity gives you the right to refuse medical treatment. It prohibits the government from forcing you to be sterilized or abort a pregnancy, and from cutting you open to get evidence. The right to make decisions about family and procreation protects your right to marry the person of your choosing regardless of race or sex, to use contraception, to engage in sexual activity and to choose what family members live with you. Roe didn’t invent new rights – it extended established constitutional protections to women, which can’t just be taken back.
Where does abortion law stand today?
The central holding of Roe v. Wade is that the government may not ban abortion before fetal viability – which today typically occurs around 24 weeks of pregnancy – the theory being that a person who doesn’t act to end a pregnancy before that point has essentially consented to government intervention. States can ban abortion after viability, so long as they make an exception for instances when a pregnancy endangers a patient’s health. Most states do ban post-viability abortion, and women prefer to have very early abortions anyway. But every pregnancy is different, and the Supreme Court has been clear that whether a pregnancy is viable is a medical determination that must be made on a case-by-case basis, not by a legislator picking a number. So the 20-week abortion ban Ohio Gov. John Kasich recently signed is just as unconstitutional as the much more attention-grabbing six-week ban he vetoed. Every 20-week ban challenged in federal court has been struck down.
In Casey, the Supreme Court said that although states can’t ban abortion, they can regulate it, either to protect the patient’s health (which is true of any medical procedure) or to promote the state’s interest in potential life by ensuring patients are adequately informed about and have carefully considered the procedure (think waiting-period laws, for example). But the ruling also said that a state cannot unduly burden a person trying to end her pregnancy. In other words, legislatures may not make it unnecessarily arduous or expensive to get an abortion, which means they’re not allowed to pass laws that have no medical benefit to shut down clinics. You might remember that the Supreme Court upheld this principle last year, in its decision about Texas’ radical anti-abortion law.
Once Trump’s in office, can’t the Supreme Court just overturn Roe?
Now that obstructionist Republicans have run down the clock on President Obama’s pick for the Supreme Court – pour one out for Merrick Garland – Trump is all but certain to nominate a far-right justice to the Court within weeks of taking office. And it’s possible he’ll get more nominations down the line, given the advanced age of several current justices. But even so, it won’t be so easy to topple Roe. Here’s how the Casey Court put it in 1992: A person’s right to terminate her pregnancy before viability “is a rule of law and a component of liberty we cannot renounce.” The Court has upheld this a dozen times. That does not leave a Supreme Court – even one with one or more Trump picks on the bench – much room to say that pre-viability abortion bans are newly constitutional.
A justice can be plenty hostile to abortion rights without being radical and reckless enough to vote to overturn Roe. It would seriously imperil the legitimacy of the Supreme Court to upend more than 40 years of precedent and essentially tell us they were just kidding about one’s right to bodily integrity being constitutionally protected. Right now, Clarence Thomas is the only justice left on the Court who’s said Roe should be overturned; Chief Justice John Roberts and Justice Samuel Alito admitted in their confirmation hearings that Roe and Casey are settled law. (Trump’s nominee for attorney general, Jeff Sessions, did the same in his hearing last week.) The public should hold them to those correct statements, rather than indulging the idea that everything is still up in the air and they can do whatever they want.
But didn’t Roberts and Alito just vote against abortion rights in last year’s Texas abortion case? Indeed, they dissented from the ruling striking down the state’s bogus medical regulations that would have shuttered most of the clinics in state. But, crucially, they didn’t do so on the grounds that abortion isn’t a constitutional right. Instead, they wrote that they shouldn’t have heard the case at all due to a procedural problem and argued (absurdly) that there wasn’t sufficient evidence in the record to show that the regulations caused the clinics to close. Justice Thomas wrote separately to rail against the Court’s abortion jurisprudence – as he is wont to do – and nobody joined him.
So wait, reproductive rights are safe under Trump?
No. There is a possibility that, as Trump has threatened, his presidency will bring the end of Roe v. Wade. But it’s a remote one – and worrying about it is a distraction from the much more insidious and effective attacks on abortion rights that are already underway.
As would be the case in a nation without Roe, women in large swaths of America today – right now – are having to travel long distances, even to other states or countries, to get abortions. That’s because after Casey, savvy abortion opponents gave up the ghost of overturning Roe and focused on attacking the availability and affordability of abortion rather than its legality. Today America is already well on its way to Trump’s vision of abortion only for the rich.
Where state legislatures have tried to regulate abortion out of existence and mandated waiting periods that require patients to make unnecessary trips across the state to the few clinics that remain, the costs of the procedure and travel can be prohibitive for low-income patients. When abortion isn’t affordable and accessible, a poor woman’s only options may be carrying to term or having a black market abortion.
The women who struggle to afford abortion are the same women who struggle to afford contraception – and the Trump administration poses a serious threat to the increased access to contraception that has coincided with the lowest abortion rate in this country since before Roe. Attempts are already underway to repeal the Affordable Care Act, which requires insurers to cover contraception without a copayment, and to defund Planned Parenthood (or, more precisely, to bar Medicaid patients from receiving care there). So there’s plenty of damage the Trump administration can do to reproductive rights without managing to overturn Roe.
Why does it matter how we talk about Roe v. Wade?
Remember when Trump proposed a ban on flag-burning? No one debated that proposal because the widespread and immediate response was, “That’ll never happen: The Supreme Court already ruled his idea unconstitutional.” But when it comes to flagrantly unconstitutional abortion bans, pundits seldom respond with that kind of clarity – even though Roe is an older and more often affirmed decision.
When proponents of abortion rights try to raise the alarm by claiming Roe can be overturned with a slight shift in the makeup of the Supreme Court, they’re adopting and perpetuating a false narrative that conservatives have been pushing for decades: that the Constitution doesn’t really protect abortion. This has the effect of helping anti-abortion activists move the goal posts and inviting legislators to trample on our hard-won rights.
It’s important to know our rights and demand they be respected, because the Supreme Court tends to interpret the Constitution in line with how the public does. We can only set abortion rights back by saying we aren’t sure if Roe and Casey are good law. And this is no time to be losing ground. If we can’t hold the line on as basic a rule as “no pre-viability bans,” we’re in big trouble when it comes to fighting sneakier and more successful economic attacks on the ability of low-income women to end a pregnancy. There’s no time for lamentation. Our elected representatives need to hear, immediately, that their constituents know an attack on the rule of law and a constitutional right when they see it, and they aren’t going to take it. Trump & Co. want us to believe the law is whatever he wants it to be – let’s be perfectly clear that the Constitution still applies when it comes to women’s bodies.