With the presidential election only one day away, the national conversation has turned from a rigged election to email security practices to early voting numbers. But with the polls showing a tightening of the race, it’s time to face one of the impending realities of the choice tomorrow — who is elected will determine whether Roe v. Wade is overturned or whether abortion remains legal in all 50 states in the country.
This issue was briefly discussed during the third presidential debate where the candidates presented starkly contrasting views of abortion’s legality. Hillary Clinton said clearly that she would appoint justices to the Supreme Court who would uphold Roe v. Wade and recognize the importance of women’s bodily autonomy. Donald Trump tried to dodge the question, but ultimately admitted that he would appoint justices to the Supreme Court who would reverse Roe and send the issue of abortion’s legality to the states to decide.
The debate moved on to other issues, as did the national conversation afterwards, but as people go to their polling places on Tuesday, it’s time to return to this one. Abortion’s future legality is not just some hypothetical issue that serves only to rally each party’s base. Rather, given the composition of the current Supreme Court, Roe v. Wade really does hang in the balance.
As everyone knows, the current Supreme Court has had one vacant seat ever since Justice Antonin Scalia died. On this eight-justice Court, there are five justices who support abortion rights (albeit to different degrees) and three who oppose them. Adding one more justice, regardless of the president, really wouldn’t do much to change the basic calculus about Roe.
However, the next president is very likely going to appoint more than just one justice. Three current justices are 78 years of age or older — Ruth Bader Ginsburg is 83, Anthony Kennedy is 80, and Steven Breyer is 78. Time waits for no one, not even notoriously iconic Supreme Court justices, so there’s a very strong chance that one of these three, if not two or even all three, is not going to be on the Court for the next four years.
This is where the threat to Roe comes. Each of these three justices who are 78 or older is among the majority of the justices on the Court who support Roe. If one of them retires or passes away over the next four years, the incoming president will appoint not just someone to fill Justice Scalia’s seat but also someone to fill one of the three elderly Roe supporters’ seats. That means two new justices to either support or overturn Roe.
From there, the Roe math is easy. If Clinton wins the election, her two new justices would create a six-to-three majority on the Court in favor of Roe. However, if Trump wins, his two new justices would form a five-to-four majority to overturn Roe. The threat to Roe is real.
Of course, there’s a scattered history of Supreme Court justices not following the ideology of the president who appointed them, which means there’s always the possibility that a Trump-appointed justice does not actually vote to get rid of Roe (and vice versa for a Clinton-appointed justice). However, most justices do follow their appointing president’s ideology. This has been particularly true for those justices appointed over the past couple of decades, as they have rarely wavered, especially on major issues such as abortion’s legality.
Put this all together and it means that if Trump wins, Roe has a real chance to be overturned.
What would that actually mean for the country? Several states have laws that would immediately outlaw abortion, while others have laws that have been stopped by the courts but would soon take effect once brought to a court’s attention. Yet other states have legislatures that would almost immediately enact a new ban on abortion. According to a 2007 report by the Center for Reproductive Rights, 21 states are at high risk of banning abortion if Roe were overturned, and another nine are at some risk.
In this post-Roe America, abortion would be illegal in a large part of this country and legal, with a few exceptions, only on the coasts. We’ve been in a similar place before — in the years before Roe, when wealthy women were able to access safe, though illegal, abortions, but everyone else had to risk their safety and sometimes their lives, and doctors had to risk going to jail. From this history, as well as the experience of countries around the world, we know one thing for sure — women will always find a way to have abortions, no matter its legality; what legality changes is whether women will have them safely.
Given the current Supreme Court, this is one of the most important differences between Hillary Clinton and Donald Trump. Tomorrow, you’ll be voting on whether Roe will survive and whether women will be safe.