May 7, 2022

Roe versus Wade Reversal: Trump’s Legacy

by Hal Gershowitz

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The Alito drafted Supreme Court decision to reverse Roe vs. Wade, assuming it becomes final, will be what defines Trump’s enduring legacy to America. Donald Trump will have left his imprint on America and American history for decades, perhaps for generations to come. Some of Trump’s policies will endure, just as some have been, and will be, jettisoned or tempered. Many people will cheer the reversal of Roe. Many more will not.

Assuming Chief Justice John Roberts, who gives great weight to established legal precedent stood with the minority, the remaining bloc of five Republican Justices who voted to negate a half-century of judicial precedent regarding a woman’s now limited agency over her own body is, overwhelmingly, Donald Trump’s creation. That is, three of the five deciding justices were appointed by former President Trump. When the Alito draft ruling becomes final, Donald Trump’s enduring historical legacy will have been defined. Many Americans are delighted. Many are appalled. Going forward, state legislatures will determine what decisions a woman can and cannot make concerning her own body when it comes to reproduction. The Alito-drafted decision represents Donald Trump’s most significant enduring influence on the nation.

Administration policies may or may not endure and, therefore, may or may not constitute a President’s historical legacy. One administration can, and often does, reverse a prior administration’s policies, just as one congress can and often does reverse another congress’s legislative action. Supreme Court decisions, however, are far less subject to administrative or congressional tinkering. They are often foundational, more like unyielding and impervious cement rather than the crazy glue that often characterizes many executive branch or congressional initiatives.

Much of Trump’s influence has been wrong-headed and quite negative, and I have addressed that reality in numerous columns to the chagrin of some of my readers. Other Trump initiatives have been quite positive, and I have recognized that in these columns to the chagrin of other readers. The Abraham Accords, Criminal Justice Reform, and moving the American Embassy in Israel to Jerusalem, where it belongs, were correct and long overdue. Incentivizing the repatriation to the United States of corporate earnings held abroad was also the right thing to do. So was committing to the withdrawal of US forces from Afghanistan. This weekly column agreed with Trump’s decision to pull out of the Iran nuclear accord because the deal provided a 10-to-12-year glide path to Iranian nuclear arms development. These Trump actions were policy initiatives that, except for US withdrawal from Afghanistan, may or may not be embraced by future administrations. Future administrations, however, can do little about Supreme Court interpretations of the Constitution of the United States.

I have read the entire Alito draft opinion. It is well written, and while I am not a lawyer, I believe the Alito draft makes a strong argument supporting a questionable judgment. In chapter and verse, Alito cites precedent in English law with respect to prohibiting abortion dating back to the early 17th century. By contrast, he hammers home that there was no judgment by our high court allowing abortion in the United States until Roe in 1973. Long standing tradition and practice carries a lot of weight with the court.

Thus, we might also look to laws in the United States well into the 19th century that codified a man’s right to enforce domestic discipline by caning his wife as long as the cane or whip or stick was no wider than the ruling judge’s thumb. That was the rule of thumb in Mississippi until 1824. In fact, it wasn’t until well into the 20th century that wife-beating was illegal in all states in America. And true, as Justice Alito would argue, such abuse is criminal in every state because every state legislature has made wife-beating illegal. That it took state legislatures well over a century to make wife beating illegal in America is not a testament to anything other than the tortured path justice often treads.

Abortion, a woman’s decision to terminate a pregnancy is, of course, a serious matter. It is also a highly personal matter. To determine that the decision to terminate a pregnancy isn’t a personal matter but rather a matter for state legislatures to decide raises many issues regarding what is and what is not the public’s business. To argue that politicians in state legislatures determine whether women who have been raped and impregnated by their rapists may or may not terminate a pregnancy, or children who have been impregnated by their father or brother may or may not be required to carry the pregnancy to term, or whether or not a pregnancy that in-utero diagnosis determines is, or will be, seriously or fatally impaired must be carried to term, catapults highly personal private matters, into gravely intrusive public matters.

Politicians can cavalierly declare, as they have, that there will be no exceptions for rape or incest or congenital anomalies and, thereby, wash their hands of any extenuating circumstances, no matter the agony with which families are then left to contend. To many anti-abortion activists, the word zygote or fetus doesn’t exist. Every fertilized egg cell, every fetus, microscopic or the size of a pinhead or a grain of rice, is simply an unborn child. A microscopic, fertilized egg cell determined to be seriously and even fatally impaired has become the purview of the state legislature and not the family or the pregnant woman. Pregnant women and their spouses are mere bystanders when this issue becomes a political circus.

The Alito draft also calls into question the entire science of in vitro fertilization. In vitro fertilization enables couples genetically at risk for producing a pregnancy that could end in a tragic outcome to screen out (discard) before implantation in the uterus a single-cell zygote at high risk for severe disease. Thus, allowing an otherwise healthy fertilized zygote to be implanted and, thereby, to progress to full pregnancy.

The ninth amendment to the United States Constitution is straight forward. “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The Alito draft casts in concrete that a woman’s decision to terminate a pregnancy even in the case of rape or incest or nearly all of the most tragic congenital anomalies is not one of those unenumerated rights. No, those decisions Alito and four other justices consign to the various individual state legislatures.

It is the Alito opinion and the Trump legacy.

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23 responses to “Roe versus Wade Reversal: Trump’s Legacy”

  1. Prover Stephen E. says:

    Profoundly erudite. This is a great contribution to this discussion which I strongly believe has been settled for one half century.

    • Ski girl says:

      I thought conservatives hated “legislating from the bench”, which is exactly what Alito & the other Catholic justices are doing

  2. JT says:

    In early American history, abortion restrictions were established exclusively for the purpose of preventing deaths from the primitive methods to abort a fetus.

  3. Perry says:

    The travesty in all this is not so much the reversal or possibility of such, but the leak in the
    system where the first time in history we have an insider “Whistle blower” putting the issue
    and inflaming elements of society. That person must be found and punished. Putting pressure
    on judges decisions is making a mockery of justice.
    I favor individual states to either approve or disapprove of abortion. It should never have become a Federal Law decision.

  4. Stuart Goldfine says:

    As a Republican voter, I believe that any woman should be allowed to have an abortion at any time during her pregnancy.
    Why allow any state or federal legislators make these decisions? Abortion should not be a political issue, but determined solely by the woman, her partner, her family, or her physician.

  5. Ron says:

    This may well be the legacy of Trump but it will reaffirm the corruption and hate of his administration rather than any good he may have done. Additionally, this ruling if affirmed is trampling on religious right outside the evangelical religions in this country. Does the Justice discuss how they can now expect the States to be sued for violating a Jewish woman’s right to an abortion as Jewish law allows? The extremism of the court will also be a legacy of Trump and quite possibly the next step in history of the down fall of the American nation. If this precedent and right is removed what next? If Congress does not pass and guarantee abortion rights this country steps back to centuries of women dying because of the inability to receive life saving healthcare!

  6. Monroe E. Haas says:

    The importance of the “leak” cannot be minimized . This action will make any “leak” in any government or other area an acceptable action.

    I think there is over emphasis on the abortion topic. I believe most Americans favor the abortion choice but there should be a time limitation where abortions are available. In short a woman should make her choice within an appropriate time limit.

  7. Larry Feldman says:

    In 1969 I was editor in chief of the Loyola Law Review. We published an article by former US Supreme Court justice that essentially the US Constitution supported a woman’s right to choose and suggested that the theologians, lawyers and physicians come together and decide when a. Woman would have the absolute right to choose. Following that article, Roe v Wade was decided. Now 50 plus years later, a woman’s right to choose is being taken away by Trump and his justices. God help our courts and the mockery of the confirmation process

  8. Patricia Levy says:

    I agree with Perry. What kind of people have we become that we think it is all right to abort a fetus that is full term or nearly full term? As a women I feel the woman’s choice should be which birth control she chooses. Roe vs Wade was based on a lie.

  9. Alexandra James says:

    Why is the leak the issue, rather than the decision itself? Because the extreme right-wing in our country wants to obfuscate the real tragedy — the muddying of one of the pillars of our Constitution: the separation of church and state — they are making this into a moral and political issue — and critically, a religious issue – and they insist on imposing their religious values on institutions from the school system to medicine and women’s healthare.

    I agree that this catastrophic decision is certainly Trump’s legacy, though it isn’t his alone. This will be the legacy of every Senator in Congress who now refuses to abolish the filibuster in order to allow the Senate to codify Roe. This is particularly shameful for Susan Collins, who publicly vented her outrage that she had been deceived by Gorsuch and Kavanaugh, and for Manchin and Sinema, and shockingly, for Murkowski –though it is no surprise that Collins, Manchin and Sinema refuse to do the right thing. They have all sold their souls for their political careers, and that is the tragedy of our country at this time in history.

    Good job, to them! I hope they can live with it when we begin to see the consequences of their decision — real people –children and young adults who are forced to bear children of rape and incest, or infants abandoned by mothers who can’t afford to raise them — or worse, women without means who are forced back to the days of quacks and coat hangers. I am old enough to remember those days why it is so tragic that we are forced backward in time.

  10. Ted Goldman says:

    Abortion rights will be returned to the States where it has always belonged.

    Women will still be able to abort nearly full-term babies in many left-wing Democratic States.

    Science has advanced considerably since 1973 clearly showing babies’ viability in late-term pregnancies

    Have the courage to acknowledge what is being done. Accept the moral consequences of your decisions.

  11. Amy Lask says:

    And what happens when birth control is no longer legal?

    And what happens when a pregnancy is a result of rape and incest?

    And what happens when a fetus is not viable and putting a mothers life in danger at any point during pregnancy?

    And what happens when it is learned that a fetus has a congenital abnormality that will 100% result in death after birth?

    This is NOT about a whistleblower. This IS about a woman’s right to choose what is best for herself, her family and her child.

  12. Carol Frankel says:

    Great essay, Hal. I would add one more “And…” to Amy Lask’s comments: And what happens when two people of the same sex choose to marry? Will that personal choice eventually be taken from us as well?

  13. Patricia Levy says:

    Amy Lask there are always exceptions, but our society feels that if is just a little inconvenient for the women she should be able to abort at any time. Abortion is not going away, you just may have to cross state lines, depending upon the state which you live. My main concern is how much our morals have diminished over the years.

  14. Amy Lask says:

    Sadly, it is already evident that we cannot rely on individual states to take into account the “exceptions” and it is incredibly naive to think individuals all have the ability and means to cross state lines.

  15. Stephen E. Prover says:

    Perry,
    Tell us.. How should the leaker be punished? What law was broken?… Different abortion restrictions in each states will result in utter chaos. Woman will be seeking reproductive services in other states fearing prosecution in their home state, missing work, finding care for children . What about all the poor minority women and women of color who are always most impacted by these arbitrary and capricious restrictive abortion laws always passed exclusively by Republican majorities….

  16. Merle ARENSON says:

    And it is extremely elementary and unthoughtful to say “just a little inconvenient “.

  17. John Dietzel says:

    What are your thoughts about that footnote, the one that talks about a need for “an adequate supply of infants for adoption?”

  18. Carolyn Salter says:

    And I read just this morning that it may be possible if a woman who’s been raped chooses abortion that her rapist could SUE her for up to $10K in damages!!!!! What is this country doing!? Leave women’s bodies and personal health decisions ALONE!!!!!

  19. BLB says:

    What about more education of and the use of birth control?????

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