Before Tuesday’s election, Republicans had done a pretty decent job of holding a unified front of obstruction against President Obama’s judicial nominations—most notably, Merrick Garland. The Republican strategy to refuse to move at all on Garland’s nomination to the U.S. Supreme Court was not just unprecedented; it may turn out to be the political move of the century, as under Trump and a unified Republican Congress, conservatives have the opportunity to shape the makeup of the federal bench and the direction of its ideology for decades to come. And that could prove disastrous.
Once it was clear Trump would be president and Republicans would have control of the courts, the press almost immediately turned and asked what will happen with abortion rights under Roe v. Wade. And rightly so. Conservatives have had their sights set on upending Roe since the decision came down. After even after this summer’s abortion rights win in Whole Woman’s Health v. Hellerstedt, there was never any reason to believe the pressure from the right to overturn Roe was off. It’s not.
The good news is that in the immediate future, abortion rights are tenuously safe, even with a Trump Court. There is currently no case in the pipeline that directly challenges either Roe’s holding that abortion is a fundamental right, or Planned Parenthood v. Casey’s sloppy undue burden standard balancing that fundamental right against the state’s interest in both fetal life and protecting patients. At the moment, there’s also not a federal statute designed to prompt a potential challenge.
Give the Trump administration and its Republican-controlled Congress just a smidge of time to get settled after this January, though, and I’d expect that to change. Conservatives have been eager to push 20-week “fetal pain” bills, dilation and evacuation bans, and even federal fetal “personhood.” If enacted and then challenged by advocates in the courts, any one of those pieces of legislation could put the issue of abortion rights squarely before the Roberts Court—one re-settled to a 5-4 conservative, anti-choice majority.
Roe has collapsed in Texas, and that's just the beginning.
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That scenario, though, takes time. The lower court challenges alone often take years. And more importantly, none of those laws exist at the federal level, which means even a unified conservative Congress has to get its act together enough to get such a measure passed and enacted in the first place, before the legal challenges that would bring Roe directly before the Supreme Court again would happen.
The Court has, of course, been under conservative rule for decades. And even prior to Justice Antonin Scalia’s death, there was reason for progressives to worry about the future of abortion rights: Conservative-run legislatures have passed a historic number of anti-choice measures in the states, all designed to make abortion care legal in name only. But the Roberts Court had been reluctant to wade deep into the fight, most recently turning away direct challenges to Roe from Arkansas and North Dakota. Put one or two Trump justices on the Court, however, and it could very well pivot.
In other words, there is nothing that the Trump administration can do to immediately upend Roe. But if you give it enough time and judicial appointments, that all changes.
The same is not true for transgender rights. Almost immediately after the election results were in, the Trump team announced its plans to rescind the Obama administration’s agency actions protecting transgender rights both in the workplace and in schools. Those actions explained that the bans on sex discrimination in current civil rights laws, like Title VII of the Civil Rights Act and Title IX of the Education Amendments of 1972, include discrimination on the basis of gender identity.
Those agency actions coincided with a growing number of discrimination lawsuits filed by transgender students challenging school policies requiring them to use restrooms and facilities that align with their assigned biological sex rather than their gender identity. Those lawsuits argue such rules violate Title IX and are unconstitutional. School boards have defended their bathroom policies, arguing that the Obama administration overreached its authority.
One of those lawsuits is now currently before the Supreme Court.
The Roberts Court has not yet decided when it will hear oral arguments in that case, which concerns a Virginia student named Gavin Grimm. Given the mechanics of the Court’s scheduling process and the current docket of more than 20 cases that remain unscheduled, it is reasonable to think the Court won’t hear Grimm’s case until sometime in the spring of 2017. While that may not be enough time for for the Trump administration to get a ninth justice nominated and confirmed, it does give the administration enough time to rescind the agency actions that the federal courts have relied on in ordering Grimm’s school to allow Gavin to use the boy’s restroom.
Rescinding those actions rights in the midst of their review in the Supreme Court could very well affect how the Court rules in Grimm’s case. It could be forced to drop it, for example, and send it back to the lower courts to reassess Grimm’s claims in light of what would be a reversal of policy by the executive branch. Right now, it’s too early to tell. But unlike a direct challenge to Roe, transgender rights are squarely teed up for the Roberts Court.
That is because Grimm’s case isn’t the only transgender rights case in the federal courts’ pipeline. There are several, notably one in Texas challenging Section 1557 of the Affordable Care Act. That provision mandates that any entity receiving federal health-care dollars must not discriminate on the basis of sex in delivering health-care services. Section 1557 is a significant federal nondiscrimination provision that has, among other things, provided a legal vehicle for transgender patients to sue if they are denied access to health care. Naturally, conservatives hate it.
In August, more than 20 states led by Republican governors, along with three religiously affiliated health-care providers, sued to block Section 1557, arguing the administration improperly expanded the definition of “sex” to extend legal protections against discrimination on the basis of gender identity. They also claim that the provision violates the Religious Freedom Restoration Act (RFRA), the same federal statute used to hobble the Affordable Care Act’s contraceptive coverage mandate in Hobby Lobby v. Burwell.
Conservatives filed their case in Texas for a reason. They were confident the conservative federal courts would sympathize with their argument that the big, bad Obama administration was stomping on the rights of states and religious conservatives to discriminate in health care by forcing doctors and hospitals to treat patients they didn’t want to treat—specifically, transgender patients—and by offering services they didn’t want to offer—such as reproductive health care.
That strategy has, so far, kind of worked. A federal judge issued an order initially blocking Section 1557’s enforcement, which the judge ruled to be binding on all federal courts nationwide. That is a bold statement not backed up by the law—a federal district court in Texas has no ability to legally bind the decision of a federal district court in California, for example. But conservatives are likely planning on advocates challenging that the ruling, which would push this case through the notoriously conservative Fifth Circuit Court of Appeals and all the way to the Supreme Court.
Unlike Grimm’s case, there is enough time for Trump and conservatives to get a ninth justice appointed to the Court in time to hear the states’ arguments against Section 1557. And unlike Grimm’s case, the challenge to Section 1557 is really yet another legal challenge to the Affordable Care Act—one modeled after Hobby Lobby, in which conservatives successfully used RFRA to allow secular businesses to object on religious grounds to complying with another nondiscrimination provision of the ACA, the birth control benefit.
This alignment of timing and legal framing could prove disastrous for the nondiscrimination provision of the ACA, assuming Congress doesn’t successfully repeal the law in its entirety before then.
For progressives, the prospect of a Trump judiciary should be terrifying. Not only will Trump get to appoint at least one Supreme Court justice, conservatives will be able to resume pipelining only the most conservative jurists into key roles on the lower courts. Those appointments will help shape federal law for decades to come.
The silver lining in this scenario is institutional inertia. Trump and conservatives can promise to immediately overturn Roe and roll back LGBTQ rights, but the law and the courts simply don’t move that fast. That is not to say progressives shouldn’t worry these issues will wind up before a Trump Court. We should—because they will.
What should also concern progressives as much as any short-term threat to Roe is how conservatives will mold the federal courts under Trump’s reign—because that legacy will extend well beyond the one or two terms Trump will serve.