Hopes of getting new abortion restrictions overturned in courts around the country are dimming rapidly for abortion rights advocates, as President-elect Trump takes office.
Trump will be able to appoint dozens of abortion-opposing judges to federal benches once he assumes office Jan. 20. And that spells trouble for abortion providers and activists, who are seeking to overturn some of the 300-plus abortion regulations states have enacted in the past seven years.
To push Trump’s appointees through, all Senate Republicans have to do is to continue a precedent set three years ago by former Senate Majority Leader Harry Reid. Using the “nuclear option,” they can confirm presidential appointments with a simple majority, with an exception carved out for the Supreme Court.
Sen. Chuck Schumer, who is replacing Reid as Democratic leader, said last week that he wishes Reid hadn’t gone the nuclear option route.
“I argued against it at the time,” Schumer told CNN. “I said both for Supreme Court and in Cabinet should be 60 because on such important positions there should be some degree of bipartisanship. I won on Supreme Court, lost on Cabinet. But it’s what we have to live with now.”
Reid recently acknowledged that his move likely will frustrate Democrats under Trump’s reign but insisted he would do it over again.
“If I had to do it over again, I would do it again in a second,” Reid told the Las Vegas Review-Journal in late December. “Now does that mean it may work to Democrats’ disadvantage during the Trump years? Maybe so, but that’s the way it is.”
Trump, who promised during his campaign to nominate anti-abortion judges, could cultivate fertile legal ground for abortion restrictions planted by state legislatures. A record 86 seats, about 12 percent of all federal district court slots, are vacant, presenting a chance for the president-elect to tilt the judiciary to the right.
At stake are slews of hotly contested, experimental abortion restrictions. States have passed 338 abortion regulations since 2010, according to a recent report by the Guttmacher Institute, a research group that supports abortion rights.
That total includes 50 regulations passed by 18 states last year. Legislators honed in on five specific measures that ban abortions under certain circumstances or govern the treatment of fetal tissue:
• Four states banned an abortion procedure commonly used in the second trimester of pregnancy known as dilation and evacuation. Courts have put the new laws on hold in Alabama and Louisiana, with similar measures passed in 2015 in Kansas and Oklahoma. But they’re in effect in West Virginia and Mississippi.
• Ohio, South Carolina and South Dakota passed laws banning abortions past 20 weeks of pregnancy except when the woman’s life is endangered or she has a severe medical complication, meaning 15 states have mid-pregnancy abortion bans on the books.
• Indiana and Louisiana enacted laws last year to ban abortion due to a fetal anomaly, but courts have blocked the measures as litigation proceeds. The Indiana law also would have banned abortion based on the race or sex of the fetus or because of its color, national origin or ancestry. Seven states ban sex-selective abortions.
• Eight states — Arizona, Florida, Idaho, Indiana, Louisiana, Michigan, South Dakota and Tennessee — enacted bills limiting fetal tissue donations. All of the measures, except for Michigan’s, ban research involving tissue obtained from an abortion. Only Louisiana’s provision is on hold, pending litigation.
• Both Indiana and Louisiana enacted provisions requiring fetal tissue from an abortion to be cremated or buried, although courts have put both laws on hold.
Judges will decide the fate of many of those regulations, wielding the power to make or break a strategy by abortion foes to regulate clinics and providers out of business by passing bills they say are aimed at clinic safety.
The prospect of judicial appointments had prompted many of them to support Trump during the campaign, despite their reservations about him. Now they’re champing at the bit for him to take office and start filling courtrooms with justices favorable to their cause.
But abortion rights advocates are deeply dismayed at the possibilities before Trump and Republicans. Beyond the district judge appointments, there’s also a Supreme Court vacancy, which Trump has said he will fill with a judge who opposes abortion, and more than a dozen appeals court vacancies.
Abortion rights supporters won a big victory with the high court’s Whole Women’s Health ruling in June, which struck Texas’ abortion provider regulations. But they acknowledge that could be their last big victory for a long time.
“We take with deadly seriousness the promise of President-elect Trump to reshape the Supreme Court to overturn key protections for women, like Roe v. Wade,” said Marcia Greenberger, co-president of the National Women’s Law Center.
