Could New Trump Supreme Court Nominee Only Weaken, ‘Not Kill’ Legal Abortion?

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Clarence Thomas is the only member of the U.S. Supreme Court on record as supporting overturning Roe v. Wade, the 1973 decision that legalized abortion throughout the country, an Associated Press news story points out.

That leads some observers to think that even if President Donald Trump replaces pro-Roe Anthony Kennedy with a strict constructionist, the new majority on the court may opt to uphold abortion restrictions rather than dispatch Roe.

The AP story begins with the following lede:

“Is Roe v. Wade really in peril? The worst fears — and highest hopes — excited by the prospect of a new Supreme Court justice may well be overblown.”

The AP story led to the following headline in the Daily Hampshire Gazette in Northampton:

Of the nine Supreme Court justices, the liberals Ruth Bader Ginsburg, Stephen Breyer, Elana Kagan, and Sonia Sotomayor are all firm supporters of legal abortion. So is Kennedy, who is scheduled to leave the court July 31.

Trump has said he plans to appoint pro-life justices to the court. If he does this time, that would in theory make for the first time a five-justice anti-Roe majority.

A question remains about the conservatives, however.

For Thomas, it’s clear. Thomas in 1992 joined in a dissent (written by then-Chief Justice William Rehnquist) in Planned Parenthood v. Casey that included the following sentence:  “We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases.”

Samuel Alito is widely thought to be anti-Roe. As a federal appeals court judge, when Alito joined in decisions upholding Roe, he made it clear he was merely following U.S. Supreme Court opinions that he felt were binding on lower courts.

Neil Gorsuch’s record on abortion is scanty. Observers on both sides expect he’d vote against Roe if it comes up — but that was true of Kennedy when he was confirmed in 1988.

That leaves Chief Justice John Roberts.

Roberts joined Thomas and Alito in a recent dissent from a Supreme Court decision that struck down significant state regulations on abortion clinics in Texas. But that’s different from jettisoning Roe altogether.

Law professor Jonathan Nash speculates in The Hill that Roberts may become the new swing vote on the court. Roberts, though generally considered part of the conservative bloc, has occasionally sided with liberals — most notably (and surprisingly) as the deciding vote in a 5-4 majority upholding Obamacare.

Roberts has shown enthusiasm for precedent. During his appeals court confirmation hearings he called Roe v. Wade “a little more than settled” and that it has “added precedent value” because it was reaffirmed in Planned Parenthood v. Casey in 1992.

Some observers think Roberts might relish crafting compromises that help cobble together a majority on various cases.

Even if the U.S. Supreme Court ditches Roe, it won’t have the same effect in reverse that Roe had in 1973. While Roe instantly legalized abortion everywhere, overturning Roe would merely return abortion law to the states.