Anyone promising that Roe v. Wade will be overturned by President Trump's next Supreme Court justice is engaging in guesswork — and, in many cases, political advocacy. Abortion rights supporters are understandably concerned about nullifying one of the court's most prominent and passion-inducing precedents, yes, but we don't even have a nominee yet. This also happens to be a great way to rally the troops.
All of that said, they have clear — and increasing — reason for concern.
In an interview with Fox airing Sunday and Monday, Trump doubled down on his past rhetoric about sending the issue of abortion to the states, which is another way of saying overturning Roe. (Roe legalized abortion nationwide, meaning its repeal would allow states to decide the issue.) Trump said he would “probably not” ask potential nominees directly about Roe — given that such litmus tests are frowned upon — but then he reiterated his past view of how this issue would play out.
“Maybe someday it will be to the states,” he said. “You never know how that’s going to turn out. That’s a very complex question. The Roe v. Wade is probably the one that people are talking about in terms of having an effect, but we’ll see what happens. But it could very well end up with states at some point.”
“We'll see what happens” is Trump's default when he doesn't want to commit to something but welcomes speculation about that thing. It's what he said right before he fired FBI Director James B. Comey — but also about many things that didn't come to fruition. It can be a threat or just Trump not having a good answer.
And Trump isn't saying he doesn't want to ask about Roe, mind you; he's saying he won't ask because he's not supposed to — “probably.” And he also offers plenty of talk about installing a conservative.
This answer will do basically nothing to tamp down theories about secret plots to overturn Roe by Trump and those pulling the strings behind the scenes. And for that perception, Trump continues to have himself to thank. Late in the 2016 campaign, he offered this in an interview with Fox News's Chris Wallace:
WALLACE: You just said you want to see the court protect the Second Amendment. Do you want to see the court overturn Roe v. Wade?TRUMP: Well, if we put another two or perhaps three justices on, that's really what’s going to be — that will happen and that will happen automatically in my opinion because I am putting pro-life justices on the court.
We're now on that second justice, the point at which Trump said his picks might overturn the law. And he said it “will happen.”
This comment, notably, came after Trump had secured the GOP nomination, so it wasn't like he was just playing to the base. He said it within a few weeks of the general election. It suggests, at the least, that Trump is content to have this pick overturn Roe, if not aiming for it. Trump may not personally care that much about the issue — he's previously described himself as “very pro-choice” and even endorsed late-term abortion, after all — but this is also a president who tosses red meat to the conservative base whenever feasible. And this would be the biggest base play you could probably imagine. It's almost impossible to think that Trump wouldn't want to try to make it happen, and now he's kinda, sorta confirming it.
The whole thing is complicated, of course, by the narrow majority Republicans have in the Senate. Sen. Susan Collins (R-Maine), a moderate who favors abortion rights, is signaling that the nominee must not be hostile to Roe. The message to Trump seems to be clear: Don't pick someone who would clearly overturn it, because I would vote against them.
How hard she'll resist is the big question. There will certainly be plenty of parsing of the nominee's comments about Roe and about Supreme Court precedents during the confirmation hearings, but that nominee will also be coached to speak about these things in noncommittal and vague terms. “I can't say how I might rule on individual cases,” “I will respect precedent that aligns with the Constitution,” etc. As long as Trump doesn't pick someone like William Pryor, with a pretty clear record of opposing Roe — he once called it the “worst abomination in the history of constitutional law” — we'll go into the confirmation vote without a clear sense of whether the new justice might dispatch with Roe.
The bottom line: Judge Barrett has given every indication that she will be an activist judge on the Court. If chosen as the nominee, she will be the deciding vote to overturn Roe v. Wade and to strike down pre-existing conditions protections in the ACA. #WhatsAtStake— Chuck Schumer (@SenSchumer) July 2, 2018
But the team that will try to confirm this justice has yet to send a strong signal that Roe should be protected. The head of the Federalist Society, Leonard Leo, has offered a series of carefully worded responses to this question. He has called the questions about Roe “a scare tactic” and noted that it has long been used against Republican-nominated Supreme Court picks. He has called it a “major precedent.” And he noted Sunday that four oft-mentioned picks “have not specifically said they oppose Roe v. Wade.”
But through none of it has he said the ruling should stand as precedent. And Trump's doubling down on his past rhetoric is notable here. Until they say something firmer about whether this is a precedent that should stand, Trump's October 2016 answer makes all of these completely fair and logical questions — even if they may not have clear answers yet.