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15 November 2016

Can Donald Trump really ban abortion?

The President-elect once said women should be punished for terminating pregnancies. 

By Julia Rampen

After it became clear that US voters were defying expectations and voting for Donald Trump, social media users began circulating lists of what could change. Included on almost every one of them was the 1973 ruling of Roe v Wade.

Few court cases are household names, but you do not have to be a US Supreme Court law anorak to know that this signifies a highly contested subject – abortion. For pro-choice activists, by upholding abortion as as constitutional right, Roe v Wade represents a woman’s right to choose. For anti-abortion activists, it represents the biggest obstacle to restricting abortion.

Donald Trump, the President-elect, has jumped on the latter bandwagon. At one point, he even shocked many pro-lifers by declaring that women should be punished for having abortions. 

Since then, he has reversed, but not very far. Since his election, he has repeated his pledge to appoint pro-life judges to the Supreme Court. He also said that if Roe v Wade were overturned, law on abortion would go “back to the states”, and those women in states where abortion was banned would “have to go to another state”. 

So what does this mean for a woman’s right to choose in the US?

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In theory, not as much as you think. For Roe v Wade to be overturned, a very specific kind of case would have to reach the Supreme Court. Then, the liberal and moderate judges would have to be persuaded to overturn the legal precedent.

At that point, women in conservative states could find themselves in a similar position to women today in Northern Ireland, where abortion laws are different from the rest of the UK. The rules in their home town might be restrictive, but so long as they could afford to travel to another state, they could still exercise the right to choose. Of course, all states could enact tough laws, but this seems unlikely. 

In practice, though, the assault on abortion rights could be less symbolic, but far more corrosive. In fact, it’s already started. In 1992, nearly two decades after Roe v Wade, Planned Parenthood v Casey left an ambiguous legacy. It upheld a woman’s rights in abortion cases, but at the same time, it also handed back more powers to states regarding how women could access abortion rights.

And then George W Bush arrived in the White House. The born-again Christian signed a ban on partial-birth abortion (late term abortion) into law, after a similar bill had been blocked by his predecessor, Bill Clinton. He slashed state funding for abortion services in the US, and restricted that for international organisations that supported abortion (Barack Obama, his successor, reinstated this). 

Meanwhile, socially conservative states started forcing clinics to comply with increasingly restrictive regulations. As The Washington Post noted in 2014, a woman living in small town Texas could face a round trip of 1,000 miles to get an abortion within her own state.

In June, the Supreme Court struck down the Texas restrictions. After Trump’s victory, representatives of abortion clinics made it clear they would keep open their doors. The commitment of Trump, not a person of faith, to pro-lifers is unclear. Nevertheless, the principle of stopping abortion through incremental action, without challenging Roe v Wade, will not be forgotten soon. 

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