Last June, abortion rights supporters groups celebrated what many viewed as the movement’s most important victory in decades. The Supreme Court’s decision in Whole Women’s Health v. Hellerstedt rejected a carefully crafted argument about the harm done to women by abortion. Worse for abortion opponents, the court clarified that the undue-burden test — the standard applied to any abortion regulation — would be much harder for antiabortion lawmakers to pass.
After years of finding themselves on the losing side, abortion rights proponents could hardly wait to challenge other restrictions. On the campaign trail, Hillary Clinton even vowed to get rid of the Hyde Amendment, a ban on Medicaid funding for abortion that stands as the antiabortion movement’s longest-lasting legislative victory.
But before anyone had time to close the books on 2016, the opposing movements appear to have switched places. Antiabortion activists are now the ones with ambitious plans, as news from Ohio this Tuesday made clear. Energized by Trump’s election, the Ohio legislature passed a measure outlawing abortion when physicians could detect a fetal heartbeat — at roughly six weeks. Ohio lawmakers sent the bill to Gov. John Kasich (R), and it will become law if he signs it or fails to act within 10 days. There is no mistaking the connection between Trump’s election and the Ohio bill. As the Ohio Senate president explained: “A new president [and] new Supreme Court justice appointees change the dynamic.”
So have Ohio lawmakers made the right bet on what will happen once Trump is in the White House — namely, that a new Supreme Court lineup could overturn Roe in the event that the Ohio law is challenged all the way to D.C.?
Not so fast. There is reason to think that antiabortion activists are just as guilty of overreacting now as supporters of abortion rights were last summer. While Ohio’s law was apparently intended to take advantage of a changing court under Trump, there’s no guarantee that strategy will work out. Nonetheless, the law portends dark times ahead for abortion rights activists, who have plenty of reason to expect an increasing number of attacks on abortion.
Certainly, Trump has a chance to transform the court. But whether that happens will depend on any number of unknown variables: the retirement or death of sitting justices, the loss of conservative as well as liberal members of the court, even Trump’s ability to predict how a nominee will vote. (After all, the decision that saved Roe the last time, Planned Parenthood v. Casey, depended on the votes of Republican nominees Sandra Day O’Connor, David Souter and Anthony Kennedy.) Trump may have just as little luck guessing ahead of time how any nominee will act when legal abortion is on the line. Likewise, Trump will replace the late Antonin Scalia, but even assuming that Trump picks a judge who cannot wait to overrule Roe v. Wade, Ohio lawmakers still probably jumped the gun. An additional vote to overrule Roe would probably leave the court divided, with a majority in favor of preserving legal abortion. Kennedy, one of the authors of Casey, just joined an opinion making it harder for legislators to restrict abortion at all, much less ban it outright for most of pregnancy.
But that doesn’t mean Trump’s election hasn’t changed anything in the world of abortion politics.
In the short term, Trump’s rise to power seems to have emboldened absolutist members of the antiabortion movement. Since the 1970s, the most powerful antiabortion groups have favored an incremental attack on abortion rights. This strategy requires the states to pass laws limiting access to abortion in a way that does not openly conflict with Roe v. Wade. The more of these laws the Supreme Court upholds, the less real abortion rights become. At the same time, as the theory goes, antiabortion leaders can create the momentum for the case that would finally deliver the fatal blow to Roe. This strategy has always had its fair share of detractors in antiabortion circles. Some feel that it is too cautious, giving politicians the ability to win antiabortion votes without really doing anything. Others see incrementalism as unprincipled: a decision to prioritize politics over the lives of unborn children.
At least within the antiabortion movement, incrementalism has been ascendant for three decades, and Trump’s election has not immediately persuaded leading groups to abandon it. Most prominent national groups have focused on more incremental laws, including one proposed in Ohio, that would ban abortion at 20 weeks rather than six. Nevertheless, Trump’s election will empower those in the antiabortion movement who are frustrated by the slow pace of change. The president-elect has shone a light on the divide among those on the political right. We should expect nothing less when it comes to the antiabortion movement.
What about the long term? Abortion opponents certainly have reason to be optimistic. Republicans control Congress and many state legislatures. Given the ages of many sitting justices, the composition of the court seems to be up for grabs. But if 2016 has taught us anything, it should be that nothing is as certain as it seems. In 1980, when abortion opponents believed that it was only a matter of time before Congress passed a constitutional amendment banning abortion, infighting doomed every proposal the movement put forward. It is not hard to imagine something similar happening today.
No one can say with much conviction what will be around the corner. But if the past year has given us any indication, anyone in the abortion battle confident that the momentum has shifted stands a good chance of being wrong.