During his campaign, president-elect Donald Trump promised to defund Planned Parenthood, nominate pro-life justices to the Supreme Court and ban abortions after the 20-week pregnancy mark. Vice President–elect Mike Pence reinforced these messages, specifically attacking the landmark Supreme Court decision protecting abortion rights. Pence stated he would like to “send Roe v. Wade to the ash heap of history, where it belongs.”
Following the duo’s surprising win last Tuesday, there is a great deal of concern about how the new administration’s policies will affect women’s reproductive rights. Experts believe that although serious changes could be on the horizon—like increased state restrictions and a chance of overturning Roe—such changes will likely happen slowly, and some may be offset by the majority pro-choice public.
The future of Roe has both optimistic and pessimistic spins. “It’s our view here at the center that it is not likely that Roe v. Wade would be overturned by the Supreme Court,” says Julie Rikelman, one of the optimists and litigation director at the Center for Reproductive Rights, a nonprofit legal advocacy organization. “The biggest reason is really history itself. Roe v. Wade has been law of the land for 43 years, through many anti-choice administrations and many attempts to appoint justices who would overturn it.”
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Of the eight justices who are currently on the Supreme Court, there are five who have supported the right to abortion. The most recent example is a decision on an abortion rights case in June 2016. In Whole Woman’s Health v. Hellerstedt, the majority of justices decided the state of Texas could not place restrictions on accessible abortion care.
Three of the justices who supported that decision are older than 78 and might soon retire, however. In addition, the late Justice Antonin Scalia’s empty seat will be filled. That means the Trump administration will change the makeup of the Court, and may get the chance to give it a conservative majority. Should that happen, many fear that Roe v. Wade could indeed be overturned. “Anyone I know who cares for women is worried about that now,” says Lisa Hope Harris, associate professor of obstetrics and gynecology at the University of Michigan.
That result would harm some women more than others, Harris contends. “Overturning Roe wouldn’t make abortion illegal per se. It would turn it back to the states to decide, and we would see patchwork availability—legal in some states, illegal in others,” she says. The patchwork would mean that women with greater economic means could travel to states where abortion is legalized in order to terminate a pregnancy. But younger, economically challenged and rural women could only have the options of illegal abortion or birth of an unwanted child.
With more conservative justices, states might also be encouraged to increase restrictions on abortion, knowing they will likely be upheld by a court against reproductive rights challenges. Since the 2010 midterm elections when Republicans gained the majority of seats in the House, and a whole host of new and extremely conservative politicians have taken office at the state level, there have already been more than 300 state laws restricting abortions passed, according to Kelly Baden, interim senior director of U.S. Policy and Advocacy at the Center for Reproductive Rights. West Virginia and Wisconsin, for example, banned abortions after 20 weeks.
“We have been in the midst of an avalanche of state-level abortion restrictions for several years now and we unfortunately did not see a huge change in the makeup of the state governors, so I don't expect that to change,” Baden says. “Now we're also looking at all three branches of the federal government being controlled by a political party that does not support our reproductive rights. So I think we'll see some emboldening of anti-abortion members of Congress in what they attempt to do at the federal level.” The country is likely to see new limits on federal funds for organizations that provide reproductive care, such as Planned Parenthood.
Physicians may also suffer directly. A federal government with a right-to-life message will likely mean doctors who perform abortions will face increased restrictive laws and threats. In a 2012 study published in The New England Journal of Medicine, Harris wrote: “Though abortion providers now work within the law, they still have much to lose, facing stigma, marginalization within medicine, harassment and threat of physical harm. However, doctors (and, in some states, advanced practice clinicians) continue to offer abortion care because deeply held, core ethical beliefs compel them to do so.”
That sense of morality will continue to drive health care professionals to provide abortions despite the dangers. “Naming conscience as a motivation for abortion provision has been very empowering in the community of abortion providers,” Harris says. “I am confident that in the face of stigma and threats, doctors and advanced-practice clinicians will continue to provide abortion care. And I suspect that even in the face of criminalization there will be care by providers who are willing to engage in civil disobedience and continue to provide that care.”
Harris’s point is supported by evidence showing legal restrictions tend not to drive down abortion rates. The results of a study, published in The Lancet, showed that when countries with laws against abortion were compared with countries that offered broader legal protection for the practice, there was no significant difference in abortion rates.
But there is a quality-of-care caveat: “We have also observed in other research over the years that where abortion laws are restrictive, women are more likely to have unsafe abortions instead of safe procedures,” says Gilda Sedgh, a co-author of the study and principal research scientist at the Guttmacher Institute, a research and policy organization.
Still, Harris argues that government restrictions may create a contrarian effect: Private financial support for Planned Parenthood and for other reproductive health care will actually increase. “After all, Hillary Clinton won the popular vote, which means that more people in this country support her agenda than Trump’s. He may not have the social mandate that he thinks he does, whatever the electoral college says,” she points out. Furthermore, according to a 2013 Wall Street Journal/NBC News Poll, seven in 10 Americans do not want to see Roe v. Wade overturned.
The public wants abortion to continue being safe and legal for the people who need it in this country, says Baden, who is also buoyed by the popular vote count on Election Day. “Clearly something else was at play at this election,” she says. “The pro-choice majority of Americans really need to make sure that their voices are heard by Congress and by this new administration so that any attempts that they make to restrict abortion rights are defeated,” she says.