Reproductive Rights: An Uncertain, Ever-Evolving Tale (Part I)

Despite the landmark Roe v. Wade decision in 1973, reproductive rights have remained at the forefront of political debate. With a vacant seat in the highest court and a new president, there is much speculation about the future of women’s right to choose. President Trump recently nominated Neil Gorsuch, a self-proclaimed disciple of the late Antonin Scalia. Does Gorsuch maintain a similar originalist view? Will the Senate confirm Trump’s nomination? Will the confirmation process be slow, fast or perhaps nonexistent (if the Senate fails to hold a confirmation hearing)? Will the Roe v. Wade precedent remain in effect? These questions remain unanswered as the United States heads toward a new political era headed by an administration that treads its own path – a path that often diverges from the administration’s core party base. This unpredictability creates an ambiguous future for many policy domains.

While the Trump administration has the ability to impact the direction of reproduction-related policies, the Supreme Court made one of its more far-reaching decisions in June of 2016. In Whole Woman’s Health v. Hellerstedt, the Supreme Court ruled 5-to-3 against a Texas law that imposed more stringent standards for abortion clinics. The two main provisions of the law were that doctors performing abortions needed to have admitting privileges at a hospital near the abortion location, and abortion facilities needed to maintain more rigorous hospital-grade standards. Advocates for the law argued that increased standards maintain the safety of patients, while those against the law point to the fact that three out of four clinics in the state would be blocked from performing abortions. The majority opinion was written by Justice Breyer and noted that the restrictions "vastly increase the obstacles confronting women seeking abortions in Texas without providing any benefit to women's health capable of withstanding any meaningful scrutiny." The opinion also highlights that the risk of abortion is lower than that of other procedures, and therefore clinics do not need to be held to the same facility standard.

The case is a major victory for pro-choice supporters whose goals have been offset in recent years. Since 2010, Republican legislatures have controlled federal and state governments. In total, over 300 abortion regulations have been passed by states. While the latest Supreme Court decision will overturn similar laws in other states, it is not entirely invulnerable. Texas is a large state, and, by limiting abortion services available, women may face a larger burden than they would in other states where the geographical distance between clinics is smaller. Therefore, the Supreme Court ruling will bolster lower court rulings in states that have blocked similar regulations. Other states will most likely require state-specific action targeted at repealing the individual state’s regulatory statute, which makes the Supreme Court’s impact less universal.

The polarized political arena has made the future of reproductive rights ambiguous, especially with the vacant seat on the Supreme Court. Gorsuch’s nomination verifies that the Trump administration intends to appoint conservative judges to the federal courts. However, it is important to note that Trump’s position on abortion has evolved over the years. In a 1999 interview on Meet the Press, Trump explicitly stated, “I am very pro-choice,” but noted that he “hate[s] the concept of abortion.” His position seemed to flip entirely in 2011. In a speech at the annual meeting of the Conservative Political Action Committee, Trump declared, “I am pro-life.” Trump clarified his stance in an interview with Mark Halperin of Bloomberg News in January of 2015. Trump reiterated his pro-life belief but “With caveats, life of the mother, incest and rape.” His recent Supreme Court nomination suggests that his hardline, pro-life view will likely persist.