The Right to Abortion May Well Be Decided by the 2016 Presidential Election

The Supreme Court finally received some coverage in the third presidential debate. With the Supreme Court split in a 4-4 partisan configuration, many important issues will be determined by the 2016 election. This report looks at abortion. From the debate:

HILLARY CLINTON: We need a Supreme Court that will stand up on behalf of women’s rights …

DONALD TRUMP: I am pro-life and I will be appointing pro-life judges … That [overturning Roe v. Wade] will happen …

As these statements and the consistent histories of the two candidates suggest, the right to abortion is largely in the balance of the election.

In 1973, in one of the most notorious cases in American history, Roe v. Wade, a 7-2 split court agreed to provide a “right to privacy” for women seeking abortion, determining that states could not restrict the fundamental right except in certain circumstances. The Court set up Constitutional rules for the “trimesters” of pregnancy, allowing fewer restrictive laws early in the pregnancy, and more restrictive laws later.

Republican appointee Warren Burger penned the Roe v. Wade case. The Court itself was split six Republican appointments and three Democratic appointments. The two dissenters were one from each party.

See also: Second Debate: Major Differences About Corporate Speech and Campaign Funding Emerge

As the years went by, the Supreme Court became more partisan. Recent cases have been divided more evenly.

In 1989, in a highly-contested and messy 5-4 decision, the Supreme Court let a Missouri state law stand that banned public funds for abortion services. This case introduced the elastic concept of “fetal viability.” It looked like the right to abortion was on the rocks. (Webster v. Reproductive Health Services)

By 1992, there was a solid block of four socially conservative Justices. In another messy decision, a slim majority of the Court invalidated a state law requiring spousal notification before abortion as an “undue burden.” The Court again discussed “fetal viability.” But this time, the right to abortion was upheld. (Planned Parenthood v. Casey)

Just this year, 2016, after the death of Justice Antonin Scalia, a 5-3 majority struck down a Texas law which increased regulations upon abortion providers. The Court found that the health benefits of the regulations were not good enough to justify the restrictions. (Whole Woman’s Health v. Hellerstedt)

Nevertheless, the prospect of overturning the right to abortion is real, and abortion rulings can be upset by slight changes in the Court makeup.

In 2000, the Supreme Court looked at a Nebraska state law banning all late-term abortions as felony crimes. A 5-4 majority struck down the law as unconstitutionally vague and particularly for not providing a clear exception for health. (Stenberg v. Carhart)

In 2003, despite this ruling, the federal government passed a “partial birth abortion” ban without a clear exception for health. Appeals courts struck down this law. The case arrived at the Supreme Court just four years later.

In 2007, looking again at late-term abortion, a 5-4 majority upheld the first-ever federal ban on abortion. The difference? The Court said that the language was not as vague as the Nebraska law, and that there was an exception for the “life” of the woman. Arguably, the bigger difference was that conservative Republican appointee and “swing voter” Justice Sandra Day O’Connor retired and was replaced with the more conservative Samuel Alito by George W. Bush. (Gonzales v. Carhart)

With the Supreme Court now split into a very partisan 4-4 bench, based upon these developments and considering the candidate statements, the next president will profoundly influence the right to abortion.