Reversing Roe Easier Said Than Done as Trump Looks to High Court

A First Look at Trump's Agenda
  • Some potential justices’ abortion views aren’t publicly known
  • Prior Republican appointees have voted to uphold Roe v. Wade

Donald Trump says his Supreme Court nominees will be willing to overturn the landmark 1973 Roe v. Wade abortion-rights decision. He hasn’t said how he’ll make sure of that.

Trump’s list of 21 prospective Supreme Court justices includes people with clear anti-abortion credentials and those whose public records show next to nothing on the subject.

What assurances Trump requires may determine who the nominee is and whether abortion opponents will achieve their dream of overturning a ruling that has been at the heart of the nation’s culture wars for more than four decades.

As conservatives have learned over that span, justices selected by Republican presidents don’t always follow the party’s script once they join the court. Republican appointees Sandra Day O’Connor, Anthony Kennedy and David Souter all proved to be supporters of at least the core right of abortion access.

That’s in part because presidents traditionally eschew directly asking prospective nominees how they would vote on particular issues, relying instead on less-concrete indicators such as a contender’s lower-court rulings and experience in like-minded administrations.

Some of Trump’s candidates have stronger anti-abortion credentials than others. Federal appellate judge William Pryor of Alabama once called Roe "the worst abomination in the history of constitutional law." Senator Mike Lee of Utah has said the Constitution can’t plausibly be read to protect abortion rights. Florida Supreme Court Justice Charles Canady is a former U.S. congressman who crafted the federal law barring what critics call “partial-birth” abortions.

For a QuickTake on partisanship and the Supreme Court, click here.

Others have little if any public record on the issue. Michigan Supreme Court Justice Joan Larsen, for example, has been on the bench barely more than a year, meaning she has only a handful of judicial opinions on any subject.

Abortion-rights supporters note that, like everyone on Trump’s list, Larsen has a solid conservative resume, with a stint in President George W. Bush’s Justice Department and a clerkship for Justice Antonin Scalia, the late conservative whose seat the next justice will fill. She was appointed to the Michigan Supreme Court last year by the state’s Republican governor.

And Larsen’s campaign website -- she successfully ran for re-election in November -- uses language long associated with anti-Roe forces. The site says Larsen "knows it’s not her job to legislate from the bench" and "understands our ‘State Constitution’ is not a ‘living document.’"

Another candidate, federal appellate judge Diane Sykes, drew Democratic criticism at the time of her 2004 nomination for comments she made as a trial judge praising two men convicted of blocking access to an abortion clinic. Even so, during her 12 years on the appeals court she hasn’t directly ruled on abortion rights.

Liberals Not Optimistic

Liberal groups say they aren’t optimistic.

"Based on the very preliminary research that we’ve done, all of them are problematic," said Nan Aron, president of the Alliance for Justice.

"We are working under the assumption that they have to be bad on the issue of women’s reproductive rights because that’s what he said he is doing," said Marge Baker, executive vice president of People for the American Way. "It’s hard to believe he’s not going to find someone who wants to overturn Roe v. Wade."

Pryor has emerged as a favorite pick for those who would overturn Roe, and he may get a boost if Trump’s choice for attorney general, fellow Alabaman Jeff Sessions, holds sway over Supreme Court nominations. Pryor’s anti-abortion rhetoric was one reason Democrats waged a two-year battle to block his appeals court nomination by Bush. Pryor was finally confirmed in 2005.

A key outside adviser for Trump on court appointments, Federalist Society Executive Vice President Leonard Leo, suggested Friday that Trump might be envisioning a justice who upholds restrictions on abortion, rather than necessarily voting to overturn Roe.

‘Happen Automatically’

"There are lots of follow-on regulations to abortion involving partial-birth abortion, fetal pain and other issues that the court hasn’t fully resolved," Leo, who met with Trump on Thursday, said on the Bloomberg Law radio show. "When he talks about Roe v. Wade, that’s probably the way he’s thinking about it."

Still, Trump’s rhetoric has gone well beyond mere restrictions. During the third presidential debate with Hillary Clinton in October, he said that overturning Roe v. Wade would "happen automatically, in my opinion, because I am putting pro-life justices on the court."

In a "60 Minutes" interview that aired Nov. 13, Trump discussed the prospect that, with Roe overturned, some states would be able to ban abortion altogether.

For women who live there, "they’ll have to go to another state," Trump said.

Court Balance

Trump may have more leeway in replacing the anti-abortion Scalia because the nomination for his seat won’t tip the court’s balance. The court in June gave abortion-rights advocates a major victory, voting 5-3 to strike down a Texas law that would have imposed new requirements on clinics and doctors and closed as many as three-quarters of the state’s facilities.

It would take at least two and possibly three Trump nominations to put Roe v. Wade in jeopardy. That’s not out of the question, given that three of the court’s abortion-rights justices are 78 or older. But it’s also no guarantee in light of the history of Republican nominations. O’Connor, Kennedy and Souter were all touted as judicial conservatives -- only to end up jointly writing the 1992 ruling that reaffirmed Roe.

One way or another, many scholars and advocates say they expect the next justice will be a solid vote against abortion rights.

"On balance, it’s a pretty good bet," said Eugene Volokh, a professor at UCLA School of Law. "You can’t always foretell people’s future actions this way, but often you can."

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