Anti-choice activists and their elected allies in Congress are not only ramping up their attacks on reproductive rights from a legislative and policy standpoint; they are also moving aggressively to shore up support for these oncoming assaults in the federal courts.
First, they successfully stole away the right to nominate a U.S. Supreme Court justice from President Obama and installed Justice Neil Gorsuch, who will prove to be a reliable anti-choice, pro-religious imposition vote on the Court. Then they moved Tom Price, Charmaine Yoest, and Teresa Manning into key policy roles within the administration that will help advance anti-abortion and anti-contraception agendas at the executive level, which will undoubtedly trickle down to the Republican-controlled Congress as well. All this, in addition to the continuing waves of legislation moving through states to restrict abortion access and push the limits of “fetal viability” earlier and earlier.
Now, they are moving to pack the lower courts with judges outright hostile to abortion rights. President Donald Trump on Monday announced a slew of new federal court nominees. All of the ten nominees have solid Federalist Society credentials. All are noted conservatives judges with near-uniform public praise for the deceased Supreme Court justice Antonin Scalia. All will do their part to help advance conservatives’ anti-choice and anti-contraception agenda in the federal courts.
If confirmed to the Eighth Circuit Court of Appeals, for example, Minnesota Supreme Court Justice David Stras will help shore up the appeals court as a conservative stronghold. Stras has served on the Minnesota Supreme Court since 2010; before that, he was a clerk for U.S. Supreme Court Justice Clarence Thomas. Stras is a noted conservative who once dissented in a case that ruled family members could order end-of-life treatment for a loved one—a judge very much in the mold of Justices Samuel Alito and Neil Gorsuch.
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And shoring up another far-right vote on the Eighth Circuit has important implications for abortion rights. In 2015, the Eight Circuit directly called on the Supreme Court to revisit Roe after reluctantly affirming two lower court opinions blocking pre-viability abortion bans in both North Dakota and Arkansas. As a member of the court, should Stras be given the opportunity, he will undoubtedly join in the chorus of conservative appellate court judges calling for Roe’s reversal.
Missouri, one of the states within the Eighth Circuit’s jurisdiction, may be teeing up a test case for the judges in the form of a total abortion ban that directly challenges Roe and makes performing, procuring, or attempting to perform an abortion first-degree murder. The bill makes no exceptions at all.
Then there are the nominations to the Sixth Circuit Court of Appeals. The Sixth Circuit is also a conservative circuit, but it currently does not lean as far to the right as either the Fifth or the Eighth. For example, in 2015, the Sixth Circuit ruled against challengers to the Affordable Care Act’s birth control benefit. Should two of Trump’s choices to serve on the court be confirmed, that could change.
The first is John Bush, a litigator in a private Kentucky firm among the attorneys who successfully challenged Ohio campaign finance restrictions on behalf of the Susan B. Anthony (SBA) List in 2010. (James Bopp, the anti-choice litigator who was one of the legal architects of Citizens United v. FEC—the case that paved the way for both corporate constitutional political spending rights and corporate religious rights—was the lead attorney for SBA.)
That case involved Ohio’s laws prohibiting people from disseminating false information about a political candidate during the campaign season, “knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.” The laws specifically prohibited false statements about a candidate’s voting record. In 2010, then-Rep. Steven Driehaus (D) filed a complaint with the Ohio Elections Commission alleging that the SBA List violated those laws by issuing a press release accusing him of voting for “taxpayer-funded abortion” in supporting the Affordable Care Act (ACA). The ACA does not provide for public federal funding of abortion, and the Hyde Amendment specifically prohibits it.
In response to the complaint, the SBA List filed a complaint in federal court, arguing the Ohio law violated its First Amendment political speech rights. The case made it all the way to the U.S. Supreme Court where, in an opinion issued by Clarence Thomas, the Court ruled in the SBA List’s favor, holding the group could move forward with its constitutional claim and sending the case back to the lower courts. In 2016, the Sixth Circuit struck the Ohio law.
Generally speaking, conservatives are looking to push the limits of the law when it comes to political spending and religious rights. This is taking shape in the form of both challenging state limitations on direct funding of religious groups, as the Trinity Lutheran case currently pending before the U.S. Supreme Court does, or in the form of attempting to revoke the Johnson Amendment, which limits political participation from religious organizations that are tax-exempt nonprofits. Based on his role in the SBA List case, Bush would be a likely ally in this fight.
As would Joan Larsen from Michigan. Larsen currently serves as a justice on the Michigan Supreme Court. Larsen clerked for Scalia and is a fan of executive power and signing statements, which are statements presidents make when signing statutes into law. Legal scholars debate over whether those statements have any effect on the meaning of the statute. Larsen is an important appointment, given Larsen’s history of favoring attempts to use executive power to usurp legislative control and the executive orders Trump has issued so far. She also worked in the U.S. Department of Justice’s Office of Legal Counsel during the George W. Bush administration and was endorsed for the state supreme court by the anti-choice Michigan Right to Life.
Similar to the Eighth Circuit, there is a potentially big challenge to Roe v. Wade in the works in the Sixth Circuit with a Tennessee bill seeking to ban abortions as soon as a physician determines fetal viability, or at 20 weeks. The law on its face is an unconstitutional pre-viability ban that likely seeks to test whether a federal court is willing to accept arguments that fetal viability can begin at conception.
Should Bush and Larsen be confirmed, they will probably be two votes against any challenge to the Tennessee law.
Neither the Eighth Circuit nor the Sixth Circuit alone will necessarily provide the legal vehicle to getting a direct challenge to Roe before the Supreme Court. But they will remain conservative strongholds for decades to come, which is bad news for abortion rights generally.
Across the country, we can expect to see a fresh new wave of anti-abortion measures in the form of laws designed to re-define fetal viability and directly challenge Roe. Montana has a version floating around its state legislature, for example. And the selection of the newly announced head of Americans United for Life, the anti-abortion litigation mill that churns out model legislation—like the admitting privileges requirement for providers ruled unconstitutional by the Supreme Court last year—confirms that conservatives are going to make more aggressively challenging Roe and potentially overturning it a top priority.
There are more nominations that will help lurch the federal courts to the right. Take Damien M. Schiff, who was nominated to serve as a judge on the U.S. Court of Federal Claims. This often-forgotten part of the federal judiciary hears money damages claims stemming from contracts with the federal government. Schiff is a big proponent of expanding private rights on public lands, a critical appointment as conservatives look to loot our national park system for private industry.
Former Scalia clerk Amy Coney Barrett of Indiana was nominated to the U.S. Court of Appeals for the Seventh Circuit, no doubt to help counter the judge Richard Posner who has emerged as a voice of reason among center-conservative judges.
Trump also nominated judges to the Eleventh Circuit Court of Appeals, as well as the district courts of Idaho and Oklahoma; both district courts of Alabama; and the District of Columbia. As would be expected, all of the nominees are judicial conservatives to the right of Supreme Court Justice Anthony Kennedy.
Of course, lurking in the background of these announced nominations is Kennedy’s rumored pending retirement. At 80, Kennedy is one of the older members of the Court, and the one justice both pro- and anti-choice advocates look to for the critical fifth vote in abortion cases. Kennedy has a mixed record on abortion rights, but he is undeniably better than any future Trump appointee would be.
Kennedy may or may not retire at the end of this term. As Rebecca Buckwalter-Poza notes at Pacific Standard, there are two ways the courts could finalize the pro-LGBTQ equality jurisprudence Kennedy has been slowly building, and he may want to stick around another year or two to see that legacy come full circle.
For abortion rights, though, the question of a post-Kennedy appointment may just be kicking the can down the road. The anti-choice movement has packed the states full of legislators willing to enact model bills drafted by ideologues. Now it is on the verge of successfully packing the federal courts with judges that will uphold them and may go so far as to undo Roe altogether.
There is not currently a case in the federal court’s pipeline that represents a direct challenge to legal abortion, but lawmakers in states like Missouri and Oklahoma are willing to pick the fight. That means it will be a year, maybe two, until that direct challenge happens. That’s enough time to install a wave of federal court judges hostile to abortion rights and coax Justice Kennedy into retirement—to finally grab the fifth vote to overturn Roe with whomever Trump nominates to replace him.