“IT’S been a long time coming,” said Carol Anne Jones, as she stood in front of the Supreme Court dressed in funereal black, and waved a small placard: “Abortion’s a choice—to murder”. Every year since 1974, anti-abortionists have gathered in the capital to protest the court’s decision, made the previous year in Roe v Wade, to recognise a right to abortion nationwide. “This year I would like to see that mistake struck down,” said the 63-year old housewife from northern Virginia. “And I think it will happen”.
Many of those who joined the “March for Life” on January 27th expressed similar optimism that Donald Trump’s presidency would bring sweeping changes to abortion law. How close will the new administration come to fulfilling the hopes of the nuns, youth groups and middle aged parishioners who sang hymns and prayed as they walked, wrapped up against the cold, from the Washington Memorial to the Supreme Court?
Mr Trump, who declared himself in 1999 to be “very pro-choice”, made his new pro-life stance an important part of his campaign. He has repeatedly promised to appoint pro-life justices to the Supreme Court, saying this could mean the overturning of Roe, and that he will sign anti-abortion measures approved by Congress, now entirely in Republican hands. These could include defunding Planned Parenthood, the biggest provider of abortions in America.
Since his inauguration on January 20th, Mr Trump has shown that his campaign promises should be taken more literally than many had previously thought. In addition to signing orders to build a wall on the border with Mexico and to pull America out of the Trans-Pacific Partnership, he has made a start on his promise to fight abortion, too. On January 23rd, he reinstated a ban—introduced by a Republican government and subsequently lifted and reinstated by Democrat and Republican ones—on providing federal money to organisations working overseas that provide information about abortion. He extended the “global gag rule” in the process, to aid provided by all governmental departments and agencies, not just the two sources stipulated previously: USAID and the State Department.
Short of turning up at the march himself, Mr Trump continued to provide good news for pro-lifers on January 27th. He tweeted—“The #MarchforLife is so important. To all of you marching—you have my full support”—and dispatched Mike Pence to address the marchers, making him the first vice-president to have done so in the assembly’s 43-year history. Mr Pence, who as governor of Indiana passed some of the toughest anti-abortion laws in America, told the crowd that the new administration was intent on ending tax-payer funding of abortions and those who provide them. He said that Mr Trump would the following week announce a Supreme Court nominee—to fill the space left by Antonin Scalia, a conservative justice who died last February—“who will uphold the God-given liberty enshrined in our constitution”. To whoops and cheers the vice-president added that “Life is winning again in America!”
Mr Pence is not the only ardent pro-lifer Mr Trump has picked for his cabinet. Tom Price, his choice to lead the department of health, has supported a nationwide ban on abortion after 20 weeks of pregnancy. His attorney-general nominee, Jeff Sessions, has called Roe “one of the worst, colossally erroneous Supreme Court decisions of all time”. Kellyanne Conway, Mr Trump’s senior counsellor, also spoke at the march.
The main objective of those marching in Washington, of course, is for Roe to be overturned. “It will happen, and the choice will go back to the people,” said Steve Hemler, a former oil executive-turned “Catholic apologist” from Culpeper, Virginia, who carried a vast image of a thumb-sucking fetus with the words, “Blob or Baby?” He was referring to the fact that if Roe were overturned it would then be up to states to impose any abortion restrictions.
But overturning Roe would be difficult. There are currently five judges in favour of keeping Roe and two—perhaps three if John Roberts, the chief justice, voted with them—who might overturn it, given the chance. So after appointing a conservative successor to Scalia, Mr Trump would then have to appoint another pro-life judge. It is likely that he will have the opportunity to do this in the next four years given that three of the court’s sitting justices are over the age of 78. But then a case would be needed to overturn Roe. And the Supreme Court tends to avoid going against its past decisions unless there is a powerful reason for doing so.
It is anyway doubtful whether Mr Trump or the many Republican leaders who in recent years have been free to speak out against abortion without any danger of the Supreme Court agreeing with them, would really want this to happen. Despite a growing partisan divide over the issue, nearly 70% of Americans back Roe, up from 60% in 1992, according to Pew Research Center.
There are several steps Mr Trump can take to keep anti-abortionists happy, meanwhile. He could help to defund Planned Parenthood, as Republicans have been threatening to do for years, although polls suggest a majority of Americans are opposed to that too. He could also make the Hyde Amendment, which bans federal funding for many abortions, into a permanent law rather than the one-year provision that is extended annually.
It is anyone’s guess how long those steps might take. But what is certain to happen in the meantime is that a gradual erosion of state-level abortion rights will pick up pace. Since 2010, Republican governors and legislators have enacted more than 300 anti-abortion regulations, from mandating that a woman must be told before she has an abortion about the ability of a fetus to feel pain to outlawing certain methods of abortion. Republican pro-lifers have attributed a fall in abortions—at their lowest level in 2014 since 1974—to new restrictions. Better access to contraception has also played a part.
In the last couple of months Ohio and Kentucky have banned abortions after 20 weeks; joining around 15 other states that do so. Indiana, Louisiana and Texas are fighting to pass laws requiring that fetal tissue be cremated or buried, which pro-choice activists say will make abortions particularly difficult and expensive. “We don’t know how long it will take”, said Kathleen Zehenny, as she marched past the Supreme Court with an “Ohio Life” banner, referring to the end of Roe. “But we will get more restrictions now.”