“It’s the judges, stupid.” That’s all you should remember when Donald Trump says he won’t sign such a national abortion ban and J.D. Vance assures the public that such a ban is an “absurd hypothetical.”
Americans panicked by the thought of a President Trump 2.0 eviscerating what’s left of reproductive freedom are undoubtedly focused on state and local races, given how the 2022 Dobbs decision overturning Roe v Wade gave carte blanche to jurisdictions to regulate and outlaw abortion. But, despite Trump and Vance’s insistence that they’ll entertain no national ban nor even address the constitutional rights the Supreme Court eviscerated and devolved to the states, the two would play a vital role in determining access to abortion—not only through a national abortion ban but also through the judges they nominate. I say “they” because Vance, a Yale Law School graduate obsessed with women’s procreation, will be involved to the hilt.
Trump has rightly claimed—although he must share credit with Mitch McConnell, the Senate Republican leader—that he is responsible for overturning Roe v. Wade by nominating three far-right justices to the Supreme Court. McConnell famously blocked Senate consideration of Judge Merrick Garland, then the much-admired chief judge on the nation’s second-highest court, following the January 2016 death of Justice Antonin Scalia under the guise that it was best left for voters to decide who should appoint the replacement. The Kentuckian’s cynicism and audacity blocked consideration of Garland or any justice for a year, leaving a vacancy for Trump to fill when he took office in 2017. Neil Gorsuch was tapped for the seat. Then McConnell, who will give up his leadership position with the new Congress, helped Trump muscle through two additional nominees, Brett Kavanaugh and, incredibly, Amy Coney Barrett, whose confirmation was rushed through the Senate in 2020 just days before voters went to the polls.
With the Dobbs decision, which found no federal constitutional protection for women’s reproductive rights, the Court’s existing supermajority, at once activist and retrograde, revisited a recent abortion decision and reversed it. In May 2021, even the Trumpified Supreme Court struck down a Louisiana law adding draconian requirements that unduly burdened women’s reproductive rights. Notably, in that case, Chief Justice John Roberts joined with a 5-4 majority, acknowledging that under very recent precedent, the law was unconstitutional. One year later, Roberts shed his faux adherence to stare decisis to reject decades of precedent, with no societal or other change to justify upending settled law. And the justices have been on a tear ever since, shredding case law regarding the government’s power to regulate, granting the president virtually total immunity and upending affirmative action.
But what makes this Court even more dangerous for reproductive rights is the ripple effect. Lower courts will also apply the Supreme Court’s precedent by shattering precedents. Republican politicians will see no reason not to pass ever more draconian restrictions. These restrictions include barring abortions to save a mother’s life or because the pregnancy was due to rape or incest.
As the Dobbs joint dissent asked: “Must a state law allow abortions when necessary to protect a woman’s life and health? And if so, exactly when? How much risk to a woman’s life can a State force her to incur… short of death, how much illness or injury can the State require her to accept consistent with the [Fourteenth] Amendment’s protection of liberty and equality?” How far states can go under the new paradigm is being decided now by state legislatures with the assistance of Trump-blessed federal judges.
Notably, the Supreme Court this past summer decided not to decide whether Idaho’s near-total ban on abortion violated the federal Emergency Medical Treatment and Active Labor Act (EMTALA). This federal statute requires that Medicare-funded hospitals provide abortions when necessary to address a medical condition that seriously threatens a pregnant woman’s life or health. While the Court punted, they seem poised to take it up again later and gut the law.
The courts can go further still to undermine reproductive rights, and in a second Trump term, with the likelihood of a Republican-controlled Senate doing the confirming, they surely will. There’s no need for a national abortion ban if the courts can get there under “constitutional law” and thereby take the decision away from the public. During oral arguments over the Idaho ban earlier this year, Justice Samuel Alito unsurprisingly suggested the direction he would like to go. Quoting the statute’s use of the term “unborn child” and its concern for its “potential interests,” Alito suggested that abortion can never be used under EMTALA to protect a woman because “[i]t seems that the plain meaning is that the hospital must try to eliminate any immediate threat to the child but performing abortion is antithetical to that duty.”
Unconcerned that the language was only meant to apply to delivery and labor issues for pregnant women, Alito repeatedly suggested that the statute gave equal weight to both a nonviable fetus and a woman—even when her life was at risk.
Earlier this year, the Court also declined to overturn federal regulations governing the distribution of Mifepristone, ruling that the parties seeking to forbid the so-called abortion drug from being delivered through the mail lacked standing. But again, given the questioning from conservative justices and their failure to enunciate any principle by which any reproductive right could be found in the constitution, the justices could well take another bite at the apple, and that’s assuming a 6-3 conservative majority, not a 7-2 one should one of the three justices appointed by Presidents Barack Obama and Joe Biden not leave the bench.
An even more nightmarish scenario: What will happen when anti-abortion zealots challenge a state law or constitutional provision protecting abortion as unconstitutional under the U.S. Constitution? Conservative lawyers and scholars have long claimed that the Fourteenth Amendment’s Equal Protection Clause protects fetuses because all states give them personhood status in criminal, tort, and property law. The Amendment protects the rights of “any person” to due process when a state deprives them of life, liberty, or property and to the “equal protection of the laws.” While many rely on this argument to defend Congress’s power to adopt a national abortion ban, it would apply equally to a direct challenge brought before the Supreme Court. The Court has not bought into this logic, let alone considered dispensing with the give-it-to-the-states abdication that guided Dobbs. But there’s no telling where the Court could go. And it needn’t strike down abortion-protection state statutes and state constitutional amendments to use fetal personhood reasoning to bless, say, requirements that aborted fetuses receive funereal burials.
So don’t listen to Trump’s pooh-poohing a national abortion ban or J.D. Vance’s dismissal of its likelihood. Instead, listen to what they say about judges. Crowing to the National Rifle Association in May, Trump vowed to remain focused on conservative judges—and in particular, he noted his advisors’ admonition that “[w]e like people in their thirties so they’re there for 50 years or 40 years.” Under Trump-Vance, the legal tableau for women will get much worse, and it won’t get better for a long time.