On the campaign trail in 2016, then-candidate Donald Trump promised that if elected, Roe v. Wade would be “automatically” overturned because would make his shortlist for the Supreme Court. Four years and three nominations later, fulfilling that pledge to reverse Roe and reduce access to abortion could be closer than ever.
As confirmation hearings were held this week for Judge Amy Coney Barrett, Mr. Trump’s third conservative nominee to the Supreme Court, two abortion-related cases have reached the Supreme Court and are awaiting the court’s decision on whether to hear them. If the Supreme Court declines to hear those, another 17 are just one step away.
“Some are test cases to overturn Roe v. Wade or to render it meaningless by upholding laws that make abortion impossible to access. In the strategy to end abortion access in the U.S., courts are the linchpin,” said Nancy Northup, the president and chief executive officer of the Center for Reproductive Rights, in an email to CBS News. Northup’s organization, which is involved in a bulk of the abortion-related cases headed towards the Supreme Court, has publicly opposed Judge Barrett’s nomination to the Supreme Court, a position the group hasn’t taken since Judge Robert Bork’s failed nomination to the high court in 1992.
The Supreme Court has yet to announce whether it will hear arguments for the two abortion-related cases that have reached the high court. One of those is, a case that challenges the core holding of Roe v. Wade, which nationally legalized the procedure up until fetal viability, which usually happens at about 24 weeks into a pregnancy.
The other case challenges the Trump administration’s Title X rule change, which banned health centers that support, perform, or even refer patients for abortion services from receiving funding from the marquee federal program dedicated to providing low-income women with birth control.
If confirmed, Barrett’s seat would give the high court a 6-3 conservative majority. Mr. Trump’s previous two Supreme Court nominations — Justices Neil Gorsuch and Brett Kavanaugh — both replaced conservative justices, effectively leaving the balance of the court unchanged, but Barrett would replace the liberal icon.
When asked how she viewed Supreme Court precedent protecting abortion access this week during Senate Confirmation Hearings, Barrett invoked the “Ginsburg Rule”: no hints, no previews, no forecasts. While Barrett did acknowledge she personally opposes abortion — confirming her signature on two separate advertisements that called for the end of Roe — she assured Senators this week “as a judge, my personal moral beliefs… my policy views, my moral convictions… do not bear on how I decide cases.”
As a federate appellate judge,in favor of abortion restrictions. And during this week’s hearings, Barrett also told Minnesota Senator Amy Klobuchar that Roe v. Wade wasn’t a “super precedent,” what Barrett said was a way to describe “cases that are so well settled that no political actors and no people seriously push for their overruling.”
“I’m answering a lot of questions about Roe,” Barrett said, “which I think indicates that Roe doesn’t fall in that category.”
Reversing Roe has been the long-game for anti-abortion rights groups, and one they’ve been working towards for years. Since 2011, states have passed more than 450 laws regulating and restricting access to the procedure, many of which pose challenges to the Supreme Court precedent that protects access to abortion, according to data compiled by the Guttmacher Institute, a research group that supports abortion rights. In 2019 alone, state lawmakers introduced more than 350 abortion restrictions, and a handful of states passed legislation thatbefore most women know that they’re pregnant, a restriction in direct violation of Roe v. Wade.
The most extreme of those,criminalizes abortions at all points in pregnancy except when the procedure is “necessary in order to prevent a serious health risk” to the patient but offers no exceptions for victims of rape, incest or human trafficking. The law’s sponsor, State Representative Terri Collins, said the ban is a “direct attack” on Roe v. Wade and anticipated it could make its way to the Supreme Court.
“The heart of this bill is to confront a decision that was made by the courts in 1973 that said the baby in the womb is not a person,” Collins said last year when the Alabama House debated the legislation. “This bill addresses that one issue. Is that baby in the womb a person? I believe our law says it is.”
Alabama’s abortion ban was blocked by a district court judge before it could be implemented, the first step in the judicial path towards the Supreme Court. In his decision, Judge Myron Thompson, a Carter appointee, wrote, that the law “contravenes clear Supreme Court precedent. It violates the right of an individual to privacy, to make choices central to personal dignity and autonomy. It diminishes the capacity of women to act in society, and to make reproductive decisions. It defies the United States Constitution.”
Among the 17 cases already that have reached appellate courts, five would ban abortion at various points in a person’s pregnancy: North Carolina’s 20-week ban, Arkansas’s 18-week ban, Missouri’s 8-week ban, Georgia’s 6-week ban and a Tennessee law that bans the procedure at various points during pregnancy.
The rest center on various abortion regulations that restrict patients’ access the procedure, including parental notification laws, requirements of providers, and restrictions on specific termination methods.
It’s impossible to predict which cases the Supreme Court will ultimately decide to hear. Four justices need to agree in order for the high court to add a case to its docket, and typically the court will only consider getting involved if lower courts have disagreed.
In Barrett’s Senate confirmation hearings this week, that pipeline of cases was referenced both by Senate Democrats and Republicans. Hawaii Senator Mazie Hirono described each case on Tuesday afternoon, explaining, “There are real reasons why the American public are concerned you’ll overturn Roe… because you’ll have these cases.”
On Wednesday morning, South Carolina Senator Lindsey Graham, who is the chairman of the Senate Judiciary Committee, pointed to those legal battles “actively being litigated” to prove that the Supreme Court precedent protecting access to abortion is controversial and up for legal debate.
As the potential to reverse Roe draws closer, some Republicans, including President Trump, have shifted their rhetoric, as if to deny years-long opposition towards the landmark decision. During a presidential debate last month, Mr. Trump rejected Democratic nominee Joe Biden’s claim that Barrett’s nomination puts abortion on the ballot. “It’s not on the ballot,” Mr. Trump said. “You don’t know her view on Roe v. Wade.”
On Monday night during the Kentucky Senate debate, Majority Leader Mitch McConnell said he didn’t know if Roe v. Wade should be overturned. “Well I’m pro-life myself,” he said, adding, “that’s a different issue than what’s before the Supreme Court…. No one knows what may happen with any nominee.”
Indeed, overturning Roe is an unpopular policy. According to a Pew Research survey, 70% of respondents said in August 2019 that they do not want to see Roe v Wade overturned.