In his final debate with Hillary Clinton during the 2016 presidential campaign, Donald Trump was asked whether he wanted to see Roe v. Wade overturned. “Well, if we put another two or perhaps three justices on, that’s really what’s going to be — that will happen,” he said. “And that’ll happen automatically, in my opinion, because I am putting pro-life justices on the court.”
That vision is on its way to becoming a reality — but in a way that even some Republicans may not be comfortable with. While many conservatives, particularly Chief Justice John G. Roberts Jr., would like to dismantle Roe carefully so as to minimize the inevitable backlash and political damage to the Republican Party, activists and legislators at the state level are forcing them to run headlong toward the end of Roe — whether they like it or not.
Let's take a look at this news out of Mississippi:
Mississippi’s governor has signed into law one of the strictest abortion bans in the country, making it even more difficult for women to get abortions in a state where only one clinic still operates.
The bill, set to take effect in July, bans abortions after a doctor can detect a fetal heartbeat during an ultrasound, unless the mother’s health is at extreme risk. Heartbeats can be found just six weeks into pregnancy — before some women even know they are pregnant.
Mississippi’s new restrictions are part of a reinvigorated nationwide effort to limit access to abortion, propelled by Republican-dominated state legislatures and an increasingly conservative Supreme Court. This year alone, at least 11 states have introduced “heartbeat bills,” including Texas, Florida, Georgia, Ohio and Missouri — some of the country’s most populous states.
A few of these heartbeat bills have passed and then struck down by lower courts before, but with Justices Brett M. Kavanaugh and Neil M. Gorsuch on the Supreme Court, there is a 5-to-4 majority opposed to abortion rights, so state-level Republicans and antiabortion activists are attempting to force the court to take a case that will overturn Roe.
Which is not really what they want — or at least, not what the chief justice wants. As I have argued before, one of Roberts’s missions is to save the Republican Party from itself. So he will sometimes join with the court’s liberal justices when it appears that the GOP or conservative activists are pushing the Supreme Court to do something that would be political disastrous for the party, doing what he can to pull it gently back to sanity.
And there is no doubt that overturning Roe, which is one of the core goals of the Republican Party, would be a political catastrophe. Around two-thirds of the American public opposes overturning the decision, and few things would motivate Democrats to get out to the polls more than the court finally doing what liberals have warned against for years.
So Roberts would probably like to follow a different path, destroying Roe without explicitly overturning it. That can be accomplished by gutting what’s called the “undue burden” standard. Created by the 1992 decision in Planned Parenthood v. Casey, it says that states can regulate abortion so long as they don’t impose an undue burden on a woman’s right to choose.
But what constitutes an “undue” burden? Conservative states have been testing the limits for some time — with laws requiring waiting periods and forced ultrasounds, mandating that doctors lie to their patients and tell them that having an abortion will cause all kinds of horrors, and putting so many regulations on abortion clinics that almost none can meet them. That last category is known as TRAP laws, which stands for targeted regulation of abortion providers.
And Roberts is fine with TRAP laws. In 2016, when there was still a pro-abortion-rights majority on the court, he dissented in a case where the court struck down a Texas TRAP law that required abortion clinics to meet a long list of requirements, including things such as having 8-foot-wide hallways so two gurneys could pass by one another, as though it were a hospital emergency room. Few clinics could meet the standards — none of which had any rational connection to protecting women’s health.
If the court rules in favor of a restrictive TRAP law, it will send a message to Republican-controlled states: This is the way to end abortion rights. Just pass a TRAP law in your state saying that abortions can only be performed in clinics that use superconductors to levitate four feet off the ground, are open only between noon and 12:10 pm on Feb. 29 of each leap year, and are staffed at all times by at least three doctors who have won gold medals in both the Summer and Winter Olympics. You won’t literally have outlawed abortion, but the effect will be the same.
But if the Supreme Court were to uphold a heartbeat bill — which would outlaw abortion much more directly — there wouldn't be any way to pretend it was anything other than what it is.
If a heartbeat bill actually reached the Supreme Court, Roberts would have a real dilemma. He pretty plainly wants Roe gone, but he is smart enough to know the damage it would do the Republican Party if there were screaming headlines in every newspaper about how the court had just made it possible to outlaw abortion in much of the country. But would he side with the court’s liberals when he has the opportunity to drive a knife through Roe?
It’s difficult to know. But right now, Roberts isn’t in control. Antiabortion activists are driving the train, straight toward an outcome that will be disastrous for both women’s reproductive rights and the party that wants to destroy them.