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Access To Abortion Could Be Curtailed Under Trump Administration

Nov 10, 2016
Originally published on November 11, 2016 5:41 pm

Amy Hagstrom Miller of Whole Women's Health had been having a banner year. Her organization, based in Charlottesville, Va., operates several abortion clinics around the country and brought a legal challenge that led the Supreme Court to issue a landmark ruling this past summer.

The court struck down abortion restrictions in Texas, setting a precedent that abortion rights groups believe could help turn back a wave of restrictions passed by legislatures across the country in recent years.

But now that Donald Trump is the president-elect? "I'm devastated," Miller says. "I feel stunned. I'm numb."

Trump's election could have a profound impact on access to abortion. He has said he'll nominate Supreme Court justices who would be likely to overturn Roe v. Wade, the 1973 ruling that legalized the procedure. And he's set to take office with one opening on the court, since Republican senators have refused to consider President Obama's nominee to fill the vacancy created after Justice Antonin Scalia died earlier this year.

Miller worries that Trump could have several vacancies to fill, all due to departures from the moderate to liberal wing of the court. Justice Ruth Bader Ginsburg is 83; Anthony Kennedy is 80; and Stephen Breyer is 78. Replacing them could put a conservative stamp on abortion law for decades to come.

In a statement, Nancy Northup, president of the advocacy group Center for Reproductive Rights, said, "Our country now stands perilously close to a return to the dark days when women were forced to put their own lives at risk to get safe and legal abortion care."

Still, even if the court becomes majority conservative, and even if the right case comes along to challenge Roe v. Wade — no sure thing — Julie Rikelman is one who does not think it will be overturned.

Rikelman is litigation director with the Center for Reproductive Rights, and says precedent is incredibly important for the Supreme Court. She says the justices addressed this in a major 1992 decision, noting that several generations of women had come of age being able decide whether abortion was right for them. The ruling declared that "the court's very institutional integrity would be in jeopardy if it reversed course now," Rikelman says.

In the shorter term, Amy Hagstrom Miller says this year's high court ruling in her case will also continue to have a ripple effect. It says states must consider whether limitations on clinics that provide abortion offer any benefit to women's health. A string of court rulings have already cited the precedent in striking down various restrictions.

"We're poised to win back access for women in a state-by-state level in multiple states because of the strength of the decision we got," she says. "And Trump doesn't get to change that."

But with the GOP sweep of Congress and the White House, abortion opponents are emboldened. "The Democrats overreached, and this was a rejection of an extreme agenda," says Clarke Forsythe, the acting president of Americans United for Life.

Americans United for Life and other abortion opponents have a long wish list, including ending Obamacare's coverage of contraception; banning abortion after 20 weeks of pregnancy; and passing a permanent ban on the use of federal funds to pay for abortion, except in cases of rape, incest, or when the life of the mother is at risk. That ban, called the Hyde Amendment, is a four-decade-old compromise between abortion rights groups and opponents, and it generally applies to abortions through Medicaid. Hillary Clinton had campaigned on overturning the ban.

Forsythe and others say they'll also work with supporters in Congress to end $500 million in annual federal funding to Planned Parenthood. "Essential gynecological care for poor women can be addressed by many more community health centers, and state and local government," he says.

Reproductive health experts dispute that. After Texas ended funding for Planned Parenthood in 2013, research found that lower-income women had trouble accessing contraception, and that led to a substantial rise in births.

Forsythe says with the sizeable Democratic bloc in the Senate, none of this will happen overnight.

"The road ahead is not going to be easy," he says, "and I think we have to be realistic about what can be achieved."

Still, he says the GOP election sweep presents abortion opponents with "historic opportunities."

Trump is an unlikely champion for abortion opponents, many of whom base their views on morality and religion. In the past, he's described himself as "pro-choice in every respect," and during the campaign he made conflicting statements on the issue. But he will face pressure from a lobbying force that's newly energized by his election.

"There are a lot of folks who didn't agree with him on many things he said and some of who he is," says Victoria Cobb, president of The Family Foundation of Virginia. "But they were counting on these pro-life promises he has made."

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ARI SHAPIRO, HOST:

Abortion opponents are feeling hopeful about a Donald Trump administration. Trump has said he'll nominate Supreme Court justices who would overturn Roe v. Wade, the 1973 ruling that legalized abortion. NPR's Jennifer Ludden has been looking into what to expect and joins us now. Hi, Jennifer.

JENNIFER LUDDEN, BYLINE: Hi, Ari.

SHAPIRO: So Trump will enter office with one Supreme Court vacancy to fill, and he might get more. There are three liberal to moderate justices close to age 80 or above. Is the idea of overturning Roe v. Wade really a possibility?

LUDDEN: There are a lot of ifs - you know, if he gets several vacancies on the court, if the right case comes along. That doesn't happen all the time. But even if all those stars were to align, I spoke with one abortion rights supporter who actually does not think that Roe is likely to be overturned.

Julie Rikelman's with the Center for Reproductive Rights. She points back to 1992, a big landmark case - Planned Parenthood of Pennsylvania versus Casey. She says the court was then asked to overturn Roe, but they declined to do so, and they talked about the importance of precedent.

JULIE RIKELMAN: The majority opinion in Casey said not only is this right incredibly important to women and women of several generations have now come to age being able to determine the course of their lives and make the decisions that are best for them, but this is now a right that the court has upheld several times. And the court's very institutional integrity would be in jeopardy if it reversed course now.

LUDDEN: Of course we've had a lot more precedent since then, but you know, at the same time, there would be different justices on the court. Bottom line - we really don't know what would happen.

SHAPIRO: Looking at more recent precedent, wasn't there a big abortion rights case just this past year that went in favor of abortion rights advocates?

LUDDEN: Yes, the Supreme Court struck down abortion restrictions in Texas. That was a 5 to 3 decision, by the way. So even when Donald Trump replaces the late Antonin Scalia on the court, that would not have changed the majority there. That case is continuing to have a ripple effect. Since then, we have seen a number of courts strike down abortion restrictions in other states, and abortion rights groups believe that will continue to happen.

SHAPIRO: Since the election, we've also reported on a rush of women getting long-acting birth control. What's that about?

LUDDEN: This is because Trump has said he wants to get rid of Obamacare, which includes a copay-free coverage of contraception. So women have gone on social media worrying about losing access to contraception and potentially also having less access to abortion.

Planned Parenthood clinics do say they've seen a sharp rise in women coming in, scheduling appointments. And a lot of them want IUDs. This is a very long-acting contraception - up to 12 years. Some woman say, you know, that could get them through two terms of a Trump administration.

SHAPIRO: What else would abortion opponents like to see in a Trump administration?

LUDDEN: I spoke with Clarke Forsythe of Americans United for Life. It's a big player in this area. He talked about two big things. He would love to see the next administration ban abortion at 20 weeks of pregnancy. And Forsythe says something that members of Congress have tried repeatedly in recent years - he'd like to see them defund Planned Parenthood.

CLARKE FORSYTHE: The federal government, given the oppressive deficit and growing deficits, should not be spending half a billion dollars every year giving it to Planned Parenthood when essential gynecological care for poor women can be addressed by the many more community health centers and state and local government.

LUDDEN: Now, there are a number of Democrats in the Senate that could block the measure. It's unclear what its chances would be. Also, abortion rights groups say they're not sure how committed Trump would be to this idea. He used to call himself pro-choice. He has said at one point Planned Parenthood does a lot of good things.

On the other hand, they'll be looking to see if Vice President-elect Mike Pence seems to have more sway in this area. He has a long track record of opposing abortion and specifically working to defund Planned Parenthood.

SHAPIRO: NPR's Jennifer Ludden, thank you.

LUDDEN: Thank you. Transcript provided by NPR, Copyright NPR.