Maybe not now. But possibly soon.

Photographer: Saul Loeb/AFP/Getty Images

Trump's Threat to Abortion Rights Isn't Immediate

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Donald Trump’s comments on “60 Minutes” suggest that the president-elect has assimilated a version of the traditional moderate Republican position on abortion rights: call for the repeal of Roe v. Wade, while hoping that in practice, abortions will still be available somehow. The logic of this position is purely political. At least some of the Republican base wants abortion outlawed, but lots of people who voted for Trump would be extremely upset if they or a woman they cared about couldn’t actually get an abortion.

Will Trump’s comments lead to any immediate reduction in abortion rights, for example by encouraging new laws that target abortion providers? The short-term answer is probably not. The current Supreme Court justices have taken a strong stand against such laws, and states that passed them now would probably find them struck down. Overturning Roe is a long-term project.

It’s conceivable, although unlikely, that Trump could get enough Supreme Court appointments to overturn Roe, or more precisely Planned Parenthood v. Casey, the 1992 decision that formally upheld Roe while replacing its doctrinal framework. That would take some time, and Trump acknowledged as much by saying in the interview that overturning Roe has “a long, long way to go.”

Replacing the late Antonin Scalia with a conservative justice won’t change the court’s balance. Replacing Justices Ruth Bader Ginsburg (age 83), Anthony Kennedy (80) or Stephen Breyer (78) could -- provided that Chief Justice John Roberts is willing to put his name to what would be the most significant deviation from court precedent in more than a generation.

To be safe, Trump would need to have three Supreme Court appointments. That’s more than Bill Clinton or George W. Bush got in eight years. (Obama would have had three picks but for Republican obstruction.)

As Trump also recognized, even overturning Roe wouldn’t outlaw abortion in the U.S., only in states that choose to pass laws criminalizing the practice. That’s why Trump was able to say that women could still get abortions -- they would just “have to go to another state.”

Of course, the point of a fundamental constitutional right is that you shouldn’t have to go out of state to exercise it. But Trump, who has been on different sides of the abortion question at different times, was trying to achieve the probably unachievable goal of promising to get Roe overturned while simultaneously suggesting that abortion would still be available.

The more immediate question is whether Trump’s statements will embolden abortion opponents to lobby for the passage of laws intended to make abortion less available in the meantime -- such as the targeted regulations of abortion providers, or TRAP laws.

You could imagine that excitement about the prospect of overturning Roe would get anti-abortion forces ready to take action. But it’s far more likely that those pro-life forces, who are accustomed to playing a long game, will take a pause and wait to see whether Trump gets to replace another justice.

The reason is Whole Women’s Health v. Hellerstedt, decided by the Supreme Court this past June. That decision created a new precedent that considers laws restricting abortion under a cost-benefit test. As applied by the court, the decision makes it very difficult for laws targeting abortion providers to survive judicial scrutiny. The legislatures passing such laws would have to show real health benefits from the measures, which typically don’t exist.

The key fact about the Hellerstedt opinion, written by Breyer, is that it was joined by Kennedy. The vote went 5-3 -- which means it would’ve come out the same way had Scalia lived, or if and when Trump replaces Scalia with another conservative opposed to abortion rights.

Any new TRAP laws will be adjudicated by the lower courts using the Hellerstedt precedent. There is little benefit to the anti-abortion movement in seeing the federal courts deepen this doctrine.

What’s more, public and visible defeats are bad for the pro-life movement, because they signal continued judicial support for abortion rights, which in turn helps normalize abortion rights in the public mind.

Even if Trump appoints a second justice, it will be a close call for the pro-life movement to decide whether to pass radically abortion-restrictive laws right away. No doubt there will be a split. True believers will want to put Roberts to the test right away. Their goal will be to get Roe overturned, come what may.

More cautious voices, however, will warn that it could be very risky to force Roberts to take a stand so long as the possibility of third Trump appointment exists. The more prudent course would be to let some time pass. If Trump gets three appointments, and replaces two liberals, Roberts’s vote won’t be necessary. And if Trump only gets two, the movement would still have a chance to press Roberts to provide the deciding vote.

The upshot is that abortion rights are genuinely in danger for the first time in years, but the effects of that danger are unlikely to be felt right away. And whatever his deepest desires, Trump probably doesn’t want Roe to be overturned during his first presidential term -- because it could well produce a political backlash that would cost him a second one.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net