Is Ginsburg's death the end of Roe v. Wade? This time, some experts say, it could be.

"Who gets to select the next justice will determine the future of Roe v. Wade."

September 21, 2020, 4:03 AM

For years in abortion reporting, the refrain was the same: no, Roe v Wade is not going to be overturned, but access to abortion will continue to be stripped away through narrower laws.

That changed Friday night with the death of Supreme Court Justice Ruth Bader Ginsburg. Facing the express possibility that President Donald Trump, who has said he would appoint justices to overturn the landmark case that made abortion a protected right across the United States, will be able to make another appointment to the Supreme Court, suddenly it became a reality that Roe itself could be written off the books.

"I was certainly one who would talk to folks like yourself and say, 'There's too much emphasis being placed on whether Roe is overturned because they can, you know, make abortion as good as illegal for millions of people without overturning Roe,'" Jennifer Dalven, director of the ACLU Reproductive Freedom Project, told ABC News. "And that remains true today, but now, I think, with the potential of somebody else, a new justice, and President Trump having appointed three justices on the Supreme Court, it makes it so that Roe is in even further jeopardy -- the right to have an abortion at all."

Support for the right to abortion at the Supreme Court already was limited. After Justice Anthony Kennedy's 2018 retirement, Chief Justice John Roberts stepped in as a sort of swing voter, as he did this year in June Medical v. Russo, an abortion case out of Louisiana about hospital admitting privileges that mimicked the Texas law struck down in 2016's Whole Woman's Health v. Hellerstedt, for which he sided with the liberal-leaning justices, albeit with a cautionary written opinion.

Now without Ginsburg, the fate of abortion rights in America comes down to the highly politicized drama of the next Supreme Court appointment. Trump's appointments so far -- Brett Kavanaugh and Neil Gorsuch -- sided with the conservatives against the abortion providers in June Medical, with Gorsuch's opinion positioning abortion as a potentially unsafe procedure (statistically, it's safer than a colonoscopy) and Kavanaugh's advocating for more fact-finding in that case. In their respective confirmation hearings, both men noted that Roe was a settled precedent, but many abortion advocates were not sufficiently convinced that meant they would not want to revisit, let alone reinforce, it.

Either Trump gets a third lifetime appointment or Democrats and some Republicans stifle the nomination process, Joe Biden wins the election, and he gets to appoint Ginsburg's replacement.

"Look, we all know that President Trump has vowed only to put justices on the Supreme Court who would overturn Roe v. Wade and allow the states to ban abortion outright," Dalven said. "So, who gets to select the next justice will determine the future of Roe v. Wade. It's that simple."

Should Trump get the appointment, Kimberly Mutcherson, co-dean and law professor at Rutgers Law School, told ABC News: "We could actually at that point see Roe overturned because when Ginsburg's vote turns into a 'Roe was wrongly decided' vote, then that becomes 5-4 ... because then it won't really matter that Roberts is siding with the liberals."

PHOTO: Supreme Court Justice Ruth Bader Ginsburg poses during a group photo in the East Conference Room of the Supreme Court, in Washington, Sept. 29, 2009.
Supreme Court Justice Ruth Bader Ginsburg poses during a group photo in the East Conference Room of the Supreme Court, in Washington, Sept. 29, 2009.
Mandel Ngan/AFP via Getty Images, File

"In the long-term," said David O'Steen, executive director of the National Right to Life Committee, "I think [Roe] will be seen as wrongly decided, and that will come when there's a majority on the court that will actually interpret the Constitution according to the actual words written in the Constitution."

He added, "I would fully expect that the president will nominate someone that he believes will adhere to the text of the Constitution."

Trump and Senate Majority Leader Mitch McConnell have indicated they will be pushing forward a nomination before the election. According to sources, the front-runner is conservative U.S. Circuit Judge Amy Coney Barrett.

Should Roe be overturned, the right to abortion would fall to states, and many states have prepared for that possibility. Governors have signed "trigger" laws on both sides that would either immediately protect the right or say it's not a right in that state. According to the Center for Reproductive Right's "What if Roe Fell?" project, abortion would remain legal in 21 states and would likely be prohibited in 24 states and three territories.

In order to overturn Roe, the court would need to hear an abortion case, which they could turn to make about Roe itself. Court-watchers have been following a case brought by Whole Woman's Health, the plaintiff in the landmark 2016 abortion case, challenging a ban on the dilation and evacuation (D&E) method of abortion. That case was heard in the 5th Circuit and is awaiting a decision. Another potential case in the pipeline, out of Ohio, challenges a ban on abortions sought on the basis of a Down syndrome diagnosis.

Overturning a nearly 50-year-old precedent, though, would be a major move that would likely draw questions about if the court had been politicized, especially since Trump has been vocal about wanting to strike down Roe, so the justices would need to present a strong case -- which court-watchers largely believe Roberts is keenly aware of. Overturning Roe would also mean addressing its subsequent Supreme Court decisions, primarily 1992's Planned Parenthood v. Casey, 2016's Whole Woman's Health and possibly even the early 2000s' Carhart cases, in which the court ruled against abortion providers on later-term abortions.

But even without deciding to overturn Roe, the Supreme Court -- with a Trump or Biden appointee -- could continue to chip away at access to abortion. For example, the court could uphold the D&E ban, which would be a de facto ban on second-trimester abortions, as it's the safest and most common procedure at that stage. Then, the court could uphold restrictions on telemedicine, cutting off access to abortion for patients in rural areas who rely on telemedicine to access medication abortion. The court could follow the Ohio case and chip away at access based on the reasoning for seeking an abortion.

And more, anti-abortion legislators could follow a framework Roberts indicated in his June Medical opinion to undo protections set in 2016, pointed out Amy Hagstrom Miller, president and CEO of Whole Woman's Health. To her, until an appointment is made, the situation is not much different now than it was on Friday afternoon.

PHOTO: Texas abortion provider Amy Hagstrom-Miller and Nancy Northup, President of The Center for Reproductive Rights wave to supporters as they decend the steps of the United States Supreme Court on June 27, 2016, in Washington.
Texas abortion provider Amy Hagstrom-Miller and Nancy Northup, President of The Center for Reproductive Rights wave to supporters as they decend the steps of the United States Supreme Court on June 27, 2016, in Washington. In a 5-3 decision, the Supreme Court struck down one of the nation's toughest restrictions on abortion, a Texas law that women's groups said would have forced more than three-quarters of the state's clinics to close.
Pete Marovich/Getty Images

"It kind of remains to be seen what would happen with this appointment and who gets to pick who the next justice is," she said. "Already President Trump has completely shaped the Federal Court, Circuit Court. It's completely different than it was four years ago. And the path to the Supreme Court is already changed."

Regardless of what happens, many in the reproductive rights space say they are feeling a poignant loss in Ginsburg's voice, which continually put women at the forefront.

"She was so adept at weaving the abortion piece of it into the larger narrative about women's equality and women's autonomy and our right to make decisions about our lives writ large," Hagstrom Miller said.

"Any replacement of Justice Ginsburg needs to be someone who understands the jurisprudence of women's rights and understands the necessity for following precedent and fair treatment under the law," Nancy Northup, president of the Center for Reproductive Rights, told ABC News. "And that means that it's really imperative that there not be a rushed process and a political process to try to push this to happen before the inauguration of the president and the new Congress in January."

"We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices," Trump tweeted Saturday morning. "We have this obligation, without delay!"

More so than about abortion specifically, Mutcherson said a rushed nomination vote before the election would represent "a sort of constitutional crisis" where "there's no respect for our constitutional order, and that's a really scary moment to be in."

"And I wonder," she added, "if there are enough Republicans out there, or moderate Republicans out there, who would say, 'No matter how important it is to me to see Roe v. Wade fall, it's more important to me that we show respect for our system.'"

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