Introduction
During his Presidential campaign, President Trump expressed a desire to reverse the judgment of the United States Supreme Court in Roe v Wade.
Roe v Wade was a landmark judgment, in which the US Supreme Court upheld the right of a woman to undergo an abortion, in designated circumstances. The judgment was widely considered to be a victory for equality and human rights campaigners. Indeed, statistics released by the Pew Research Centre suggest 70% of Americans do not wish the judgment in Roe v Wade to be overruled.
However, Roe v Wade remains the most divisive case in US judicial history. In recent years, a number of pressure groups have rigorously campaigned for the re-criminalization of abortion. Every year, on the anniversary of the judgment, a group of anti-abortion campaigners embark on a “March for Life” outside the US Supreme Court building in Washington DC, in protest against the decision.
US Abortion Law: The Current Position
The right to privacy is a fundamental human right, protected by the Due Process Clause of the Fourteenth Amendment to the US Constitution.
The right to privacy encompasses a broad range of individual rights, including the right to marry, the right to engage in consensual adult sexual relations, the right to use contraception, the right to keep the family together and the right of parents to make their own decisions regarding the care and custody of their children.
In Roe v Wade, the US Supreme Court ruled that the right to privacy enshrined in the Due Process Clause of the Fourteenth Amendment of the US Constitution included the right of a woman to undergo an abortion, in designated circumstances.
Currently under US law, the legality of State restrictions on access to abortion are contingent on the stage of the pregnancy in question:
(a) Prior to Viability
Prior to viability of the fetus, a State may adopt a regulation protecting the mother’s health and the life of the fetus, provided the regulation does not place an “undue burden” on the woman’s right to obtain an abortion.
(b) Post Viability
A State is entitled to enact laws prohibiting the abortion of a viable fetus. However, a State cannot prevent a woman from obtaining an abortion if an abortion is necessary to protect her health or safety.
Judicial Vacancy in the US Supreme Court
Unfortunately, the sad demise of Justice Antonin Scalia in February 2016 has left a vacancy in the US Supreme Court.
President Trump has nominated Judge Neil Gorsuch to replace Justice Scalia in the US Supreme Court. Judge Gorsuch is widely perceived to be anti-abortion and may therefore be receptive to attempts to re-litigate the issue before the US Supreme Court, notwithstanding the settled status of US abortion law.
Moreover, it is anticipated that up to three of the remaining US Supreme Court Justices will enter retirement during President Trump’s term in office. Indeed, three of the current US Supreme Court Justices have already served for in excess of 20 years and are either over the age of 80 or will shortly reach the age of 80.
There is, therefore, a real possibility President Trump may be required to nominate four US Supreme Court justices – nearly half of the Supreme Court – during his term in office. The installation of four new justices would constitute a radical overhaul of the composition of the US Supreme Court and may have a real impact on the direction of US justice, particularly in the context of US abortion law.
