Trump is filling federal judgeships at a record pace, and that’s bad news for Roe v. Wade

Winning the long game?

By Diana Ofosu/ThinkProgress
By Diana Ofosu/ThinkProgress

Before he took up residency in the White House, former Indiana Gov. Mike Pence signed some of the country’s most restrictive abortion laws in 2016 — banning the procedure if it was sought because of fetal genetic anomalies, like Down syndrome, and requiring aborted fetuses to be cremated or buried.

A year later, a federal judge permanently blocked these laws, saying they were unconstitutional. The state has since appealed that decision to the Seventh Circuit Court of Appeals. Meanwhile, the policies have continued to spread on the state level. Ohio lawmakers passed similar measures — one just last week.

This legislative back-and-forth is the result of the weakening of Roe v. Wade, the landmark 1973 case that granted a constitutional right to an abortion — with some qualifiers. The Supreme Court decision that followed Roe nearly 20 years later, Planned Parenthood v. Casey, permitted states to regulate abortions as long as those laws do not impose an “undue burden.” What exactly constitutes an “undue burden” — or an obstacle in the path of an individual seeking an abortion — is left to the federal courts to interpret.

This constitutional right of women and gender minorities should not depend on zip code, but it does. Abortion laws vary state-by-state, often depending on how aggressively state lawmakers push restrictions or protections. Where there are restrictive abortion laws, there are lawsuits. This legal patchwork means abortion access isn’t universal but dependent on home address and economic standing.

Federal judges acts as arbiters of abortion policy, and therefore are one of the biggest potential threats to Roe v. Wade. 

Currently, there are 145 vacant federal judgeships total, and 17 of those vacancies are on the court of appeals. (The court of appeals — organized into 12 regional circuits — decides appeals from the district, or trial, courts.) The court of appeals hears roughly 7,000 cases annually, and just about 150 of those decisions make it all the way up to the Supreme Court. The Trump administration has been afforded the opportunity to fill many of these critical seats and has been doing so at record speed.

These are the judges that are interpreting the Constitution for the first time,” Julie Rikelman, senior litigation director at the Center for Reproductive Rights, told ThinkProgress. “When the Seventh Circuit talks about whether a law like [Indiana’s] is constitutional or not, it is really setting the standard for all of the states in that circuit, and so it really is very important to think about the judges that are on those federal appellate courts.”

Trump has nominated two judges to the Seventh Circuit Court of Appeals, and the Senate has so far confirmed one: Amy Coney Barrett of Indiana. Civil rights advocates warned against confirming Coney Barrett because they say she’ll put her personal views above the law. Now, she could be one of the judges who decides whether to uphold now-Vice President Pence’s 2016 anti-abortion laws. (Judge selection is in February when oral arguments begin.)

Politicians in robes?

While the political party affiliation of the president choosing the judge has no direct bearing on the the judge’s decision, research suggests Republican-appointed justices tend to vote more conservatively on average than Democrat-appointed justices, especially if they’re deciding on civil rights cases.

Moreover, many of Trump’s federal judge picks — including Amy Coney Barrett — were on his Supreme Court shortlist, which purportedly meant that they promised the president they’d “automatically” overturn Roe.

Barrett is an alleged member, or “handmaid,” of People of Praise, a Christian group which holds anti-abortion views. Separating personal religious convictions from the job isn’t impossible, but it could be for Barrett. Under questioning from Sen. Mazie Hirono (D-HI), Barrett said that were she picked to be a district judge, her faith would move her to not enter orders of death penalty. “Why does Barrett feel compelled to recuse herself from entering orders of execution as a trial judge, but not from affirming such orders as an appellate judge?” asked the Vetting Blog’s Harsh Voruganti. And for that matter, why only execution? 

Barrett — like a handful of federal judges — is filling a seat that was left vacant under the Obama administration, but that Senate Republicans refused to fill. Had Obama been able to appoint more than one judge to the Seventh Circuit, he could have influenced a rather conservative court. Instead, the opposite is true.

Trump picked Allison Eid, of Colorado, to fill a relatively moderate federal appellate court. Anti-abortion advocates view Eid as a win because, as a judge on the Colorado Supreme Court, “Eid voted to hear the appeal of an injunction against public displays of graphic abortion images.” The Senate also confirmed anti-gay blogger, John Kenneth Bush, to the Sixth Circuit. Bush wrote an amicus brief for a group opposing the admission of females into Virginia Military Institute; he argued VMI “does not appear to be compatible with the somewhat different developmental needs of most young women.”

So far, the American Bar Association found four of Trump’s nominees unfit to serve; one was confirmed to the Eighth Circuit Court: Leonard Steven Grasz. During his tenure as Nebraska’s former chief deputy attorney general, Grasz defended the state’s so-called “partial-birth” abortion ban. While a Republican-appointed district judge says Grasz maintained professionalism in court, that same judge sharply criticized Grasz’s writings on abortions by dilation and extraction in a legal journal. “I conclude that Mr. Grasz proposes a strain of judicial activism that he ought to decry,” wrote the trial judge.

The gravity of these confirmations isn’t going unnoticed — at least by reproductive rights advocates.

“Trump is radically remaking an entire branch of government,” said Erica Sackin, Director of Political Communications for Planned Parenthood Federation of America. “These are lifetime appointments being filled with people who have a track record of working against women’s health and rights today.”

Trump’s crowning achievement

Trump’s presidency so far has been an onslaught of attacks against reproductive health — from the symbolic gestures, like Trump speaking at the anti-abortion March for Life rally, to concrete policy decisions, like cutting $214 million from teen pregnancy programs while maintaining funds to abstinence-only programs.

Regardless of the setbacks to the pro-choice movement, there have also been victories — largely in the courts. A Pennsylvania federal district court judge blocked Trump’s rollback of the contraceptive mandate last year. (The Trump administration signaled it may appeal the decision.) A federal appeals court sided with an undocumented minor who sought an abortion but was stopped by the Trump administration.

Under the Trump administration, the courts have often been the last and sometimes only check on the harmful policies that they’ve been pushing,” Sackin told ThinkProgress. 

The Republican Party is well aware that Trump’s appointments are significant. Senate Majority Leader Mitch McConnell (R-KY) said judges — not the tax overhaul bill — represent the GOP’s greatest achievement during Trump’s time in the White House.

The Senate has confirmed the most federal appellate judges in one year since the system started, and noted they “are relatively young.” So far, Republicans confirmed 12 appellate court and 10 district court judges. Last week, the Senate Judiciary Committee approved 17 more nominations for full Senate approval.

Conventional wisdom says that the greatest threat to Roe v. Wade is the potential retirement of Supreme Court Justice Ruth Bader Ginsburg, leaving a vacancy to be filled by the second Trump-appointed judge to the highest court. But the more insidious threat to Roe is already happening on the state level.

“What we saw after Planned Parenthood v. Casey was different states passing different restrictions and different courts saying different things about what an undue burden — what does that mean?” said Rikelman of the Center for Reproductive Rights.

Three years ago, Whole Women’s Health v. Hellerstedt qualified what an undeniable burden is. The Supreme Court overturned a stringent Texas law on clinics and doctors, which would have further reduced abortion availability. “A burden is undue and unconstitutional if its benefits are outweighed by the burdens — the obstacles that it places on women,” Rikelman said of the decision.

Even so, states continue to pass restrictive laws. Nineteen states adopted 63 new restrictions in 2017, according to the Guttmacher Institute. Unlike before Whole Women’s Health, when restrictions focused on cracking down on the provider, many restrictions in 2017 focused on policing the patients. A few of these restrictive laws have been challenged and blocked by federal courts.  

Reproductive rights advocates who spoke with ThinkProgress maintain the law is on their side, and say this is how they’ll counteract Trump’s judicial bench. Even so, this inevitable sea change is undoubtedly the greatest victory for anti-abortion advocates under the current administration — and will long outstay Trump’s tenure.