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For Women’s Reproductive Freedom, a Chill Wind Blows

Roe v. Wade will stand for now, but the essential right it protects is in Trump’s line of fire.

November 28, 2016

Cross-posted on The American Prospect

Donald Trump’s plans for an extreme misogynistic makeover of reproductive health care received way too little scrutiny during his noxious, anti-woman campaign. Now, the damage a hard-right Trump administration could inflict on abortion rights and women’s health services more broadly has become impossible to ignore.

Trump lost the popular vote and received no mandate to roll back or eliminate a fundamental right that the Supreme Court has recognized as integral to women’s autonomy and equality, but since Election Day, he has made even plainer his commitment to doing exactly that. In his first prime-time TV interview following the election, the president-elect doubled down on his campaign calls to destroy Planned Parenthood, pack federal trial and appellate courts with anti-abortion ideologues, and eventually appoint enough Supreme Court justices to do away with reproductive rights altogether.

“Then some women won’t be able to get an abortion,” pressed Leslie Stahl, on 60 Minutes. “Yeah, well, they’ll have to go to another state,” responded Trump cavalierly, as though making abortion illegal in about 30 states almost overnight, and obliterating a fundamental constitutional right that has stood for 43 years, would be no big deal.

Of course, abortion-rights advocates have been ringing alarm bells for many years, over several dicey election cycles, about emerging threats to Roe v. Wade, the landmark 1973 Supreme ruling that legalized abortion nationwide. (Confession: I penned plenty of those warnings myself during my 30 years as a member of TheNew York Times editorial board.) But what we confront now, on a national level, is a uniquely threatening landscape.  

A President Trump backed up by Republican majorities in both the House and Senate will be able “to appoint anti-choice judges and take swings at women’s health care at all levels,” sums up Nancy Northup, head of the Center for Reproductive Rights. Northup’s group will be at the forefront of efforts to minimize the wreckage, alongside Planned Parenthood, the ACLU’s Reproductive Freedom Project, NARAL Pro-Choice America, and other organizations toiling at the intersection of civil rights and women’s health.  

It’s going to be an uphill slog. The incoming Trump-Pence regime has both the ambition and the realistic potential to achieve a further contraction of already-shrunken access to safe and legal abortion care, and much more. It is early yet in Trump World, and it’s not fully clear what agendas and tactics the incoming administration or its political and policy allies will pursue, but there are some things we already know.

Defunding Planned Parenthood is a signature cause of the nation’s stridently anti-choice Vice President-elect Mike Pence. Pence has targeted its invaluable network of health-care clinics because the organization spends some of its non-federal money to provide abortions, a needed and legal medical procedure. As a House member, Pence pursued defunding Planned Parenthood almost to the point of causing a government shutdown. As Indiana’s governor, he signed into law multiple egregious restrictions. The most notorious of these, enacted earlier this year and since enjoined by a court, barred abortions motivated by a “genetic abnormality,” such as Down Syndrome. The law also required both miscarried and aborted fetuses to be “interred or cremated by a facility have possession of the remains,” no matter when the pregnancy ended. 

It is likely that Pence and similarly obsessed congressional Republicans will now try to advance innovative attacks like that on a national level. This could include unconstitutional measures percolating in the states, such as a ban on the most common method of second trimester abortions, known as dilation and evacuation, or D&E.

President Obama vetoed a measure to defund Planned Parenthood earlier this year, but the new Trump-Pence administration can be expected to make achieving the defunding an early priority. Also on the front burner will be a 20-week abortion ban like the one Senate Democrats blocked last year, which had an inadequate exception for a woman’s health and none for severe fetal abnormalities.

As on so many fronts, fronts, the outcome of these abortion battles will depend on the ability and will of Senate Minority Leader Chuck Schumer and his 48-member caucus to apply the brakes. In a suddenly transformed Washington, Senate Democrats are the remaining political roadblock to legislation and presidential nominations unacceptable to progressives. The caucus will be tested right out of the gate by Trump’s controversial selection of Senator Jeff Sessions, the Alabama Republican known for his antipathy to civil rights, including reproductive rights, to serve as attorney general. While pledging to refrain from any “quick judgments,” Schumer has also vowed “a very thorough and tough vetting.”

Schumer and his colleagues are in a tough spot.  They are bound to be bombarded with bills and appointments that they strongly oppose, but if they threaten or invoke the filibuster too frequently, Republicans might throw out that parliamentary tool altogether, drastically reducing the minority party’s influence on Capitol Hill. To complicate things further, ten of the Democratic Senators up for re-election in 2018 hail from states Trump carried handily. Plus, if Republicans are unable to win the 60 needed to break a filibuster and move a bill to the Senate floor for action, they can get their way on some matters by burying language in budget measures that require only 51 votes to pass. Bottom line: Progressives can’t count on Senate Democrats to block every piece of legislation they oppose. But they can maintain constant pressure to stiffen Democratic spines and help elevate progressive values and programs amid the horse-trading.

Birth control is also under threat. Republican plans to dismantle Obamacare and come up with a substitute—assuming that second part happens—may take some time to implement. But the new administration could begin immediately to follow through on its promise to either eliminate the Affordable Care Act’s free contraception coverage mandate or tremendously broaden its religious exemption without any congressional action. All the new administration would need to do is stop defending the government against pending lawsuits by religiously affiliated universities, health-care providers, and other entities demanding to be exempted on religious liberty grounds. Little wonder that many women who work for or are covered by the insurance plans of such employers are busily scheduling visits to their reproductive health providers before Inauguration Day.

As for the Supreme Court, Trump can be expected to nominate someone to fill the late Justice Antonin Scalia’s vacant seat soon after taking office. But even if that person is confirmed and, as expected, shares Scalia’s opposition to the essential right that Roe guaranteed, it would still leave intact the five-justice majority—the court’s moderate-left flank plus swing justice Anthony Kennedy—that meaningfully bolstered abortion rights only last June by striking down clinic-closing restrictions in Texas for want of a valid health justification. 

For abortion-rights advocates, that recent victory makes the ascendance of an anti-Roe GOP majority all the more wrenching. A key question — on abortion, as on many other issues — is how long the group of justices who held sway in the Texas brawl will remain on the court. Three justices have reached an advanced age: Kennedy is 80; Stephen Breyer is 78; and Ruth Bader Ginsburg is 83. Like others apprehensive about Trump-made Supreme Court appointments, abortion-rights advocates are counting on these three to get plenty of rest, eat all their green leafy vegetables, and resist any inclination to retire while they’re still able to perform their court duties. In the meantime, these activists are bracing for an unprecedented assault on reproductive rights and health.

(Photo: Flickr)