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Get Ready for a New Chapter in the Long Legal War Over Abortion

On the 44th anniversary of 'Roe v Wade,' a woman's right to have an abortion is still under threat.

Allie Conti

Allie Conti

Allison Shelley/Getty Images

Among the many things Donald Trump has promised to change in America is abortion. He's vowed to overturn Roe v. Wade—the landmark Supreme Court decision that gave women the right to choose to end pregnancies—"automatically" upon taking office, and he has essentially guaranteed social conservatives that his pick to replace the late Antonin Scalia will support their agenda. Though he was once personally pro-choice, Trump changed his mind in the past couple decades, and as president seems fine with supporting the policies backed by Republicans like Vice President Mike Pence.

But overturning Roe, which marks its 44th anniversary on Sunday, will not be simple. More likely, Trump's Supreme court will move in a pro-life direction gradually, allowing states to pass restrictive laws that make it harder for women to get abortions. In other words, we can look forward to more years of legal battles. 

To figure out what that battle will look like, I called up Carol Sanger, a professor at Columbia Law School and an expert in reproductive rights. Here's what we talked about.

VICE: Let's start with the basics. What did Roe do, exactly?
Carol Sanger: The Supreme Court found that the right to privacy [protects women who want to have abortions]. The word privacy isn't mentioned in the Constitution, but there are a number of provisions in the Constitution that add up to a zone of privacy, like the police have to have a warrant to search your house. So under the idea of privacy, the court said, making an intimate decision about such a major thing in the shape of your life is covered by the right to make other important decisions about private aspects of your life. That's how they got there. 

Since Roe v. Wade, other words have been used to describe the nature of that right. The Supreme Court has described it as a "liberty right," also covered by the Constitution, or a "right of autonomy." These terms all go to the notion that being able to decide important things about the shape of your own life is a protected interest and the state can't just come in and take it away unless they have a really, really good reason.

What other cases have built off of Roe?
There's a second case that modified what Roe said. And that's Planned Parenthood v Casey, 20 years later. Casey was a challenge to Pennsylvania statutes that regulated abortion every which way. Women had to notify their husbands before they could get abortions, women had to look at pictures of fetuses, there was a waiting period—there were many, many regulations around consenting to abortion. And there was a heavy appeal to the court by pro-life advocates who said, "This is your chance to correct what you did with Roe." And the court said, "No, we're not going to do that. We're going to uphold the basic holding of Roe." 

But the court also said that the court didn't get everything right in Roe. One of the things that they didn't get right was the state's interest in "potential life," as the court called it, although now they're calling it "unborn life." Roe had said that a state's interest in embryonic or fetal life starts after the first trimester—that meant until 12 weeks, the state could only regulate [abortion] in basic ways: clean facilities, licensed doctors, stuff like that. Casey said, no, a state's interest in potential life starts at the moment of conception. This meant the state could start regulating abortion in the first trimester, and that opened the door to all sorts of regulations.

There's one other case, which came up last summer: Whole Woman's Health v Hellerstedt. Casey had said an abortion statute is unconstitutional if it creates an "undue burden" on the right to have an abortion. The equivalent phrase they used is if a statute places a "substantial obstacle" in a woman's way, that's an undue burden. They figured out that in the Texas case, [because of the law that was being challenged] so many clinics would close that a significant percentage of women would have to drive 150 miles [to reach a clinic]. More would have to drive over 100. Some would have to drive over 200, and so on. And they said, it can't be good for women's health to have them crammed into the few facilities that are left—we're going to strike it down.

"You don't really have to overturn  Roe to make a dent in the ability of women to get an abortion in a sensible, fair way."

So how could a more pro-life Supreme Court roll back some of these rulings?
The first thing that will happen is not an overturning of Roe v Wade but just a backing off of Whole Woman's Health. You could say, "Oh we don't think it's a burden for them to have to drive so much." That's what the lower court had said in a related case. Then you're just back under the days of Casey, when states could do pretty much whatever they wanted. So you don't really have to overturn Roe to make a dent in the ability of women to get an abortion in a sensible, fair way.

Many states pass statutes against abortion saying things like, "We're passing this statute to improve women's mental health. We don't want women to feel guilty."  What the court said in Whole Woman's Health was, "We're interested in medical benefits. You have to actually prove it." Pro-choice advocates think that's great, because it means states can't say anything they want [about in court] and carry the day. 

If the [new court] decides that Whole Woman's Health only applies to the kind of things that were regulated in Texas, and limit the holding there, maybe states don't have to make such a big showing. States may be able to just say, "We say these are the facts. We think women will feel guilty," rather than having to point to studies that prove that. That would be the best way to cut back quickly on the right to abortion.

Conservatives will get another justice on the Supreme Court because there's already a vacancy that Trump will fill. But will one extra pro-life justice be enough to overturn Roe?
It's certainly not enough to do that. That's probably three or four justices away. But it might be enough to limit Whole Woman's Health.

"It's going to be important that judges don't just roll over and become political animals."

How likely is it that new justices will work as hard as they can to roll back abortion rights?
In Casey, some of the justices said, "If we'd been on the court when Roe was decided, we never would have voted for it—but we're on the court now, and we think people have gotten used to the right of using abortion if contraception fails." They said there wasn't a strong enough reason to get rid of Roe. New justices appointed by Trump might decide that they're not supposed to overturn something just because they disagree with it politically. 

It's going to be important that judges don't just roll over and become political animals. We have a Republican House and a Republican Senate and a Republican presidency, but we should have a neutral court.

Are there any cases moving through the system now that could challenge Whole Woman's Health?
There's nothing on the cusp. One of the ways cases get heard by the Supreme Court is that there are issues where some appellate courts go one way and other appellate courts go another way. And there aren't that many [abortion] cases now that are contradictory to each other. It's going to take a couple years, I think. before anything gets to the Supreme Court on abortion.

In the unlikely instance that Roe v Wade were overturned, would pro-life activists just declare victory? Or would they find further battles?
Sincere, religious pro-life advocates believe abortion is murder and some of them oppose the death penalty on the same account—they're consistent in their belief that life should not be taken. But I think that hating Roe does work way beyond that. There were two things available [to conservatives] to show what a horrible, immoral society we've become: One was gay people and the other was women who choose abortions. I can't think anything else having the same power as a moral issue. I wonder if they really, really want it overturned. 

So you think this issue is shorthand for a lot of other things, in a way?
I think it's shorthand for nostalgia, for the way America ought to be, in some views. I think it's a way of saying women should be at home with children, not working. It stands for a whole outlook on how life should be. And abortion just turns it topsy-turvy.

When women have a truly unwanted pregnancy, they will end it. We know what women did before Roe. They had abortions. They went to Mexico, or they self-aborted. People treat it as though it's something women do on a whim, why can't they just buck up and have another baby? It's quite something to become a parent against your will.

What can pro-choice states do to strengthen abortion laws?
What they can do is they don't enact nonsensical regulations. And that's a good thing! I think there's going to be a lot more differentiation between states [when it comes to restrictions on abortions] and so there'll be a lot more traveling. If it's really hard to get one in your state, you go to another state, and that's kind of how it was before Roe. Everyone traveled to the states that respected a woman's right to choose.

This interview has been edited and condensed for clarity.

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