In recent weeks, anti-abortion groups have reiterated their belief that Donald Trump is the most “pro-life president in history.” It’s not hard to see what they mean. Trump has tried to defund Planned Parenthood, gut contraceptive coverage, overhaul the federal judiciary, and increase abortion restrictions. The president has given his supporters a new conservative Supreme Court majority. But Monday’s Supreme Court decision in June Medical Services v. Russo is a sign that Trump has undermined the anti-abortion movement—though not in the way many might suspect.
In the case, Roberts concurred with his liberal colleagues to strike down a Louisiana law that required abortion providers to have admitting privileges at a nearby hospital, citing his respect for precedent—the Court had invalidated an almost identical law out of Texas four years earlier. Some conservatives see the decision as just one more piece of evidence that Trump needs to do more to deliver a conservative Supreme Court. It followed an opinion earlier this month by Neil Gorsuch, a Trump nominee, holding that federal civil-rights law prohibits discrimination on the basis of sexual orientation and gender identity. True, today the Court gave religious conservatives a win on the separation of Church and state, striking down a Montana policy that the majority said discriminated against religious schools and families. But conservatives still seem angry. Not long before the Court issued its abortion decision, Senator Josh Hawley of Missouri went so far as to demand a guarantee that future GOP nominees to the bench will provide conservative results.
Hawley’s call to arms is exactly what abortion foes do not need if they hope to win over the Court’s current justices.
The decision in June Medical makes clear that there is a path to overturning Roe v. Wade—if and only if the anti-abortion movement has the patience and savvy to see it through. But Trump—who has given anti-abortion activists more short-term wins than any other president—has fostered a culture of instant gratification, persuading state legislators to throw caution to the wind and pass sweeping bans now.
After all, this is a president who rose to power on the promise that the politically impossible is realistic if grassroots conservatives invest enough. His 2016 election victory defied expectations. He has since stumbled from scandal to scandal without seeing his (generally low) approval numbers crater. At times, the rules of American politics do not seem to apply to him.
Red-state lawmakers hoped to play the same game. Nine states have introduced laws banning abortion once a fetal heartbeat can be detected—which usually happens in the sixth week of pregnancy. Alabama’s ban begins at fertilization. None of these laws makes exceptions for rape or incest. These laws do not appeal to public majorities. No one designed them that way. And they did not seem likely to appeal to the Supreme Court. But that wasn’t the point: Trump had won by rallying his base, not playing to the middle, and anti-abortion activists wanted to do the same thing.
Trump’s message is clear: What experts say, and what the media confirm, does not matter. This is the stand he has taken on wearing a mask during the COVID-19 pandemic and reopening businesses while cases climb. It’s the position he’s taken on the removal of Confederate monuments at a time of reckoning for racial justice. Abortion foes, too, believed that the old predictions about what the Supreme Court would do no longer apply.
The Supreme Court showed Monday that these guesses were wrong, at least for now. In June Medical, Roberts outlined his skepticism of abortion rights, suggesting that if the Court were working with a blank slate, he would have voted to uphold Louisiana’s law. And Roberts’s version of the undue-burden test—the controlling rule in abortion cases—seems far less protective of abortion rights than the approach the Court has taken in recent years.
Just the same, Roberts has a reputation for caring about the Court’s legacy—and about proving that the Court is not a partisan institution. Regardless of how skeptical Roberts is about abortion rights, he could find no way to distinguish Louisiana’s law from the Texas statute the Court struck down in 2016. And he felt that he could not seriously claim to care about precedent if he let this statute stand.
None of this suggests that Roberts’s vote is a lost cause for abortion opponents; far from it. But some conservatives have reacted not by rejecting absolutism but by demanding more sweeping results—and more quickly. Hawley labeled June Medical a disaster and called on the president to overhaul the process used to select conservative justices. States had continued passing bans on abortion early in pregnancy well before the Court’s decision, and National Review urged anti-abortion leaders not to “slacken for a moment.”
This impatience does not fully come as a surprise. For decades, conservatives defined themselves in opposition to a liberal legal doctrine forged in the 1960s and ’70s. They adopted approaches like originalism, a philosophy anchored to the original meaning of the Constitution. Originalism worked well when conservatives could denounce new rights recognized by the Court as inventions of a political judiciary. Now conservatives hold a majority on the Supreme Court, and Donald Trump claims to have nominated more judges than any president since George Washington. Originalism may get conservatives many things, including the overruling of landmark legal precedents and an appearance of neutrality that plays well with ambivalent voters. But it does not guarantee the recognition of new rights that conservatives want, including a “right to life” that would ban all abortions.
Some conservatives have already proposed alternatives. The conservative columnist Sohrab Ahmari has questioned the underpinnings of pluralist democracy, calling on conservatives to harness the power of the state to “enforce [conservative] order and … orthodoxy.” The Harvard law professor Adrian Vermeule has proposed common-good constitutionalism, an approach that calls for a “powerful president ruling over a powerful bureaucracy,” all with a “candid willingness to legislate morality.” Ahmari and Vermeule recognize that the strategies often used by the conservative legal movement may take them only so far.
These arguments might make sense if Roe had been overruled. Trump’s rise has persuaded social conservatives to jump the gun. Many believe that Roberts will still likely help his conservative colleagues unravel abortion rights, but his respect for precedent seems real, at least up to a point. Roe is a precedent too. Pushing too fast is likely to backfire. Anyone who expects the Court to reverse Roe will need time and patience. And those are two things that conservatives are missing in the age of Trump.
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