US jus­tice may sig­nal shift on abor­tion


With Pres­i­dent Don­ald Trump poised to nom­i­nate a U.S. Supreme Court jus­tice to fill the va­cancy cre­ated by the death of lib­eral icon Ruth Bader Gins­burg, a new 6-3 con­ser­va­tive ma­jor­ity could be em­bold­ened to roll back abor­tion rights. The ul­ti­mate ob­jec­tive for U.S. con­ser­va­tive ac­tivists for decades has been to over­turn the land­mark 1973 Roe v. Wade de­ci­sion that le­gal­ized abor­tion na­tion­wide. But short of that, there are other op­tions the court has in cur­tail­ing abor­tion rights.

Repub­li­can-led states in­clud­ing Ohio, Ge­or­gia, Mis­souri, Arkansas and Alabama have passed a va­ri­ety of abor­tion re­stric­tions in re­cent years. Some that seek to ban abor­tion at an early stage of preg­nancy are still be­ing lit­i­gated in lower courts and could reach the jus­tices rel­a­tively soon. Abor­tion is one the most di­vi­sive is­sues in the United States. Con­ser­va­tive op­po­si­tion to it has been a driv­ing force be­hind Repub­li­cans, in­clud­ing Trump, mak­ing a high pri­or­ity of ju­di­cial ap­point­ments in re­cent years.

"Roe v. Wade is on the line in a way it never has been be­fore," said Julie Rikel­man, a lawyer with the Cen­ter for Re­pro­duc­tive Rights, which reg­u­larly chal­lenges abor­tion re­stric­tions. Even if Roe is not over­turned, "we could be in a sit­u­a­tion where the court is up­hold­ing even more re­stric­tions on abor­tion," Rikel­man added.

Trump has said he in­tends to an­nounce his nom­i­na­tion on Satur­day, with con­ser­va­tive ap­peals court judges Amy Coney Bar­rett and Bar­bara Lagoa con­sid­ered the fron­trun­ners to be named to suc­ceed Gins­burg, who was a strong de­fender of abor­tion rights. Gins­burg died on Fri­day at age 87. The lead­er­ship of the Repub­li­can-con­trolled Se­nate is poised to move for­ward with the nom­i­na­tion even as Trump seeks re-elec­tion on Nov. 3.

Even though the court had a 5-4 con­ser­va­tive ma­jor­ity be­fore Gins­burg's death, some ac­tivists on the right were con­cerned about Chief Jus­tice John Robert's in­cre­men­tal ap­proach. Roberts an­gered con­ser­va­tives by sid­ing with the court's lib­er­als in June when the court ruled 5-4 to strike down a Louisiana abor­tion re­stric­tion in­volv­ing a re­quire­ment im­posed on doc­tors who per­form the pro­ce­dure. Roberts, who wrote a sep­a­rate opin­ion ex­plain­ing his views, sig­naled he may back other abor­tion re­stric­tions in fu­ture cases but said he felt com­pelled to strike down Louisiana's law be­cause the jus­tices just four years ear­lier had in­val­i­dated a sim­i­lar law in Texas.

Trump vowed dur­ing the 2016 pres­i­den­tial cam­paign to ap­point jus­tices who would over­turn Roe v. Wade. He al­ready has ap­pointed con­ser­va­tives Neil Gor­such and Brett Ka­vanaugh to the court. Both voted to up­hold the Louisiana law.

Anti-abor­tion groups are push­ing for Trump to pick Bar­rett, a con­ser­va­tive Ro­man Catholic who he ap­pointed to the Chicago-based 7th U.S. Cir­cuit Court of Ap­peals in 2017. Al­though she has not yet ruled di­rectly on abor­tion as a judge, Bar­rett has twice sig­naled op­po­si­tion to rul­ings that struck down abor­tion-re­lated re­stric­tions. Broadly speak­ing, Repub­li­can-con­trolled states have en­acted two types of abor­tion laws: mea­sures that would im­pose bur­den­some reg­u­la­tions on abor­tion providers and those that would ban abor­tions dur­ing the early stages of preg­nancy.

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