Abortion politics largely took a backseat in the 2016 race and hasn’t yet surfaced in the first days after the election, which has been dominated by speculations about what President-elect Donald Trump can immediately do on his own once he formally assumes office.
If we look beyond executive action, though, it becomes clear that the future of abortion politics has fundamentally changed in the past four and a half months.
When the Supreme Court made its decision last June in the case of Whole Woman’s Health v. Hellerstedt, it appeared the justices had shut down the anti-abortion movement’s most aggressive and important means of fighting abortion.
For decades, the anti-abortion movement had been working within the parameters set by an earlier court decision, Planned Parenthood v. Casey, by incrementally limiting abortion access through regulation of clinics, providers, patient processes and abortion procedures.
The Whole Woman’s Health decision seemed to alter this process by declaring that Texas’s attempts to require abortion doctors to have admitting privileges at local hospitals, and that all abortion clinics needed to meet surgical center requirements, were unconstitutional.
This removed two of activists’ leading and most effective tactical innovations, forcing them to rethink their strategies. Trump’s election, and the GOP’s grip on the House and Senate, may effectively nullify this apparent roadblock.
The reasons for this extend back to the federal courts that control the parameters of abortion politics. The Trump administration faces 103 federal judicial vacancies, roughly one-eighth of the seats on the nation’s federal courts. President Barack Obama, who has nominees under consideration for filling just over half of those, has been severely hampered because the Republican-controlled Senate has been slow to make any confirmations, or, in the case of filling the now long-standing Supreme Court vacancy, has outright refused to.
President Trump will not face any such barriers. He and his party will have a clear path to appointments at all levels of the federal judiciary.
The geography of the current vacancies suggests a renewed set of political opportunities for anti-abortion activists. Disproportionate numbers of current and future federal court vacancies are located in states that have been leading the way in the incremental regulation of abortion. For example, 11 of the current federal court vacancies are in Texas, which passed the legislation successfully challenged in Whole Woman’s Health.
Trump will now also be able to fill the seat left open by Justice Antonin Scalia’s death, returning a five-justice conservative majority to the court. He may even be able to increase the conservative majority over the next four years.
All of this should revive and embolden the anti-abortion movement after its lows from earlier this summer. While Whole Women’s Health will remain as a precedent, it can be construed narrowly by the courts in the coming years. And anti-abortion activists, facing an ever-friendly judiciary at all levels, can be expected to resume their push toward increasingly restricting abortion access through the aggressive incremental and indirect regulation of abortion.
Coupled with a receptive federal legislature and executive, the movement may even expect to expand its efforts and scope by moving from the borders of friendly states to the nation as a whole via federal law—something it has largely been unable to do.
What the movement likely won’t do, however, is return to directly trying to reverse Roe v. Wade. With polling data showing that the majority of Americans oppose the total banning of abortion, such a move would be very politically risky.
What’s more, the mainstream of the movement appears to have seen the value in incrementally limiting abortion access. That said, if there is one lesson from the 2016 election, it is that America’s political future is anything but easy to predict.
Joshua C. Wilson is an associate professor of political science at the University of Denver. He is the author of The New States of Abortion Politics and The Street Politics of Abortion: Speech, Violence, and America’s Culture Wars.