Will Roe survive? If Trump can be held to one Supreme Court appointment, yes. If not, though, it’s over, and the only question is whether Roberts summarily executes the reproductive rights of American women or tortures to death:
Admittedly, previous Supreme Courts that were even more dominated by Republicans refused to overrule Roe. But this was not some kind of conscious decision by Republican elites; rather, it was due to a series of flukes and political calculations that no longer apply. Consider the nominees of Ronald Reagan and George H.W. Bush, who were all essential to Roe’s partial survival. Sandra Day O’Connor, who was known to be a moderate on abortion, was nominated by Reagan to fulfill his promise to nominate the first female Supreme Court justice at a time when there were few viable candidates—a tradeoff no Republican president would make today. Kennedy was on the Court only because the Senate rejected Reagan’s first choice, the fiercely anti-Roe Robert Bork. David Souter was the product of idiosyncrasies within the first Bush administration—most notably the influence of two prominent New Hampshirites who admired Souter—and his liberal record on the Court means that no Republican president will ever nominate someone like Souter again (and if they did, a Republican Senate would reject the nomination).
If Reagan had just nominated Bork while he still had a Republican Senate, Roe almost certainly would have been overruled in 1992, when the Court instead upheld a constitutional right to abortion in Planned Parenthood v. Casey. If Trump gets at least two Supreme Court justices confirmed, this luck will run out.
As his dissenting vote in this year’s Texas abortion case makes clear, Chief Justice Roberts does not believe in the constitutional protection of a woman’s reproductive rights. And it is entirely possible that at the first opportunity he will author a decision overruling Roe. Still, a more likely possibility is that he will use the same fake-minimalist approach he’s used in areas such as campaign finance and voting rights, incrementally undermining the foundations of precedent before going in for the kill shot. Rather than loudly announcing that he’s overruling a precedent, he treads carefully, ruling on the issue at hand and setting up a later attack. The classic example is him planting the idea that the Voting Rights Act had to comply with a newly minted “equal sovereignty of the states” restriction, in a deceptively unanimous 2009 opinion—then using it to gut the Voting Rights Act four years later.
If he chooses the latter route, he can use the roadmap set out by his predecessor and former boss, William Rehnquist. In the late 1980s, Rehnquist tried to effectively overrule Roe without explicitly doing so, proposing the replacement of Roe’s trimester framework with a standard allowing the states to pass any law that “reasonably furthers” a state’s interest in protecting fetal life. (“As you know, I am not in favor of overruling Roe v. Wade,” Justice John Paul Stevens responded at the time, “but if the deed is to be done I would rather see the Court give the case a decent burial instead of tossing it out the window of a fast-moving caboose.”)
Since Planned Parenthood has already replaced Roe’s clear trimester framework with the more nebulous “undue burden” standard—in which abortion opponents must prove that a given restriction does not place an undue burden on women seeking an abortion—Roberts’s task for attacking Roe is even more straightforward. He can simply find that no abortion regulation, including those as extreme as the ones recently passed in the Ohio legislature, constitutes an undue burden.
And, of course, his good friend Sam Alito will be there to help craft doctrines that make it enormously difficult to bring facial challenges to abortion regulations.
It’s also worth noting that there’s yet another reason for Democrats to maintain a laser focus on making Trump as unpopular as possible: Anthony Kennedy. Presumably, the only way Breyer or Ginsburg is leaving the Court with Trump in the White House is in a wooden box. But if Trump is normalized as just another Republican president and is reasonably popular, it’s more likely that Kennedy will resign and allow someone from his party to replace him.