Judge Amy Coney Barrett, who was officially announced as President Donald Trump's next Supreme Court nominee on Saturday, has long topped the president's Supreme Court shortlist. That’s no coincidence.
Conservatives fully expect Barrett to cast a vote to reverse Roe v. Wade, the court’s landmark decision recognizing a right to choose abortion. At the 7th Circuit Court of Appeals, Barrett joined a dissent suggesting that states could pass so-called reasons bans, outlawing abortion for reasons of race, sex or disability selection. Before she was on the bench, Barrett, then a law professor at the University of Notre Dame, belonged to the university’s Faculty for Life group and signed a letter affirming the “value of human life from conception to natural death.”
Of course, when it comes to Roe, there are never any guarantees. In 1992, a Supreme Court with a Republican-nominated supermajority defied expectations and saved abortion rights. But Barrett’s confirmation, assuming she is confirmed by the Senate, certainly makes Roe’s demise much more likely.
The key, it seems, is for the court’s conservatives to move more slowly — and to dismantle abortion rights in a way that’s hard for Americans to truly understand. After all, polls continue to show that while public opinion on abortion is messy, a majority of Americans support keeping abortion legal (and do not support overturning Roe).
But with Barrett on the court, there is almost no doubt that the justices will gut Roe, if not reverse it outright. Anyone concerned about abortion will have to pay close attention. It may take a long time — and a fair amount of work — to figure out what has become of abortion rights. That also means it’s time to start thinking very seriously about what will happen next if we find ourselves in a post-Roe, or practically post-Roe, nation.
Before Ruth Bader Ginsburg's death, the court already had what seemed to be a majority ready to reverse Roe. Yes, Chief Justice John Roberts, the swing vote at the time, joined his more liberal colleagues in striking down a major abortion restriction this summer. But in the same breath, Roberts rewrote the undue burden test, the rule that applies to all abortion restrictions, and made it a lot easier for states to restrict abortion.
Now, with Barrett on the court, it won’t matter if the chief justice sides with the court’s progressives. Roe will still be in jeopardy.
Despite their intense opposition to his confirmation, progressives may try to win over Justice Brett Kavanaugh, who seems to share some of the chief justice’s concerns about the court’s reputation. Of the four conservatives who voted not to strike down the Louisiana law, Kavanaugh was the most cautious. He preferred to kick the case back to a lower court for more analysis of the facts. But Kavanaugh hardly seems like a true swing vote. To a greater degree than Roberts, he seems convinced that the court can severely undermine abortion rights without any political blowback.
Barrett’s nomination means it’s time to think about what comes after Roe. Democrats have already floated the idea of packing the court, especially since Senate Majority Leader Mitch McConnell, R-Ky., does not apologize for playing political hardball with judicial nominations. Court-packing might avert a threat to abortion, at least for a while. But no matter what happens with court-packing, conflict about the courts will continue. After all, anti-abortion forces fought for nearly five decades to undo Roe. If the right to choose is gone, that fight will go on — only this time, the roles will be reversed.
Abortion rights will also be contested in Congress. Progressive lawmakers have already backed the Women’s Health Protection Act, a federal statute that would protect access to abortion. In the states, conflicts will multiply. In red states, lawmakers will battle about whether to ban abortion in cases of rape and incest. Some will consider punishing women as well as doctors. Swing state legislatures will see heated battles about abortion. So will state supreme courts.
In the meantime, access to abortion will depend almost entirely on someone’s zip code. Today, there are already sharp differences between the states when it comes to abortion access. Those differences will intensify if Roe is gone. Alabama has already signaled its intention to sentence abortion doctors to 99 years in prison.
As so often happens, these changes will fall the heaviest on low-income women. It's true that the dangers for patients are not as grave as they were the last time abortion was a crime. Maternal mortality in the United States is down (although still embarrassingly bad compared to other developed nations). Nonprofits mail abortion pills, often used terminate first-trimester pregnancies, to countries and states where abortion is illegal. But just the same, there are no new protections for low-income pregnant workers, parents or children. Poor, nonwhite families will bear the brunt of any decision reversing Roe.
That means the demise of Roe is risky for the anti-abortion movement and the GOP. It is quite possible that Republicans will face some kind of backlash when Roe is gone. When the court departs too much from popular opinion, its own reputation can also take a hit. That’s certainly possible given most Americans seem to want abortion to be legal (if highly regulated). Under Trump, the GOP might not be seeking majority support in the first place. But history suggests that there can be real political fallout from an unpopular Supreme Court decision — and that can damage both the image of the court and the cause the court embraced.
But the history of the abortion debate can only tell us so much. We have not lived in a world with criminal abortion for nearly half a century. In the years since Roe, technology and obstetric care have changed, so have women’s lives. Imagining a post-Roe world is anything but easy.
One thing is sure: No matter what the Supreme Court does, the abortion debate will not be over. Justice Harry Blackmun, the author of Roe, kept newspaper clippings suggesting that most Americans believed that abortion should be a decision between a woman and her doctor. He seemed to think that Roe would put an end to the abortion wars. Today, one more conservative on the Supreme Court may mean the demise of Roe. But the abortion wars will rage on.