Andrew Ayala, CLS ’18
After President Trump won the general election in November, many began to speculate how his presidency would change the existing legal landscape. One of the more contentious issues is the abortion right granted by Roe v. Wade. The President vowed to appoint right-wing justices to the Supreme Court, which many fear would result in less rights for women choosing to get abortions. (Source: MSNBC)
When abortion is discussed in the legal sense, it is not so much about being “pro life” as it is about an originalist approach to constitutional interpretation. Many conservative judges reject the core holding in Roe v. Wade that there is a right to privacy in the Constitution that would protect a woman’s right to abortion. Judicial conservatives hope that the Constitution will be read and applied as they believe it is written, and therefore, limit government power. They see Roe v. Wade as a total failure in that respect. (Source: CNN)
Currently, there is only one vacancy on the Supreme Court left by Justice Antonin Scalia. Replacing Justice Scalia with another conservative judge would probably not be enough to overturn Roe v. Wade. “Right now there are about five judges on the Supreme Court that would favor Roe v. Wade.” (Source: TheHill.com). Justice Scalia’s successor would not be enough for a majority vote against the landmark case. However, there are several judges who are in their 70’s and almost 80’s. It is possible that President Trump may get a chance to replace a second or even third seat on the Supreme Court; at which point Roe v. Wade could be in significant danger.
Furthermore, there is always a chance that the President may surprise the country and nominate someone who is pro-choice. Conservative champion former President Ronald Reagan tapped Justice Anthony Kennedy and former Justice Sandra Day O’Connor who both consistently voted to ratify the core or Roe v. Wade. (Source: Politico) It is possible that President-elect Trump follows in the path of former President Reagan. The abortion debate will definitely be something to keep an eye on now that the President’s taken office.