Reproductive freedom is on the line in this election. We saw exactly how dangerous Trump justices can be when the Supreme Court, including three Trump nominees, overturned Roe v Wade in 2022 and deprived childbearing people of the constitutional right to abortion and reproductive freedom. In their ruling in Dobbs v Jackson Women’s Health, Trump nominees Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett cast decisive votes that upheld a restrictive Mississippi abortion law and overturned Roe. This is the horror we’re facing all over again if Trump is reelected.
Even before Dobbs, Trump lower court judges issued rulings harming reproductive choice
In 2021, when Roe v Wade was still the law of the land, Trump judge James Ho cast the deciding vote in US v Texas, which upheld a harmful Texas law that set up a “bounty hunter” enforcement scheme where any person can seek to punish someone who performed or helped someone get an abortion by filing a civil lawsuit. Texas Attorney General Ken Paxton has encouraged Texans to use the law against a woman who left Texas to get an abortion after the Texas state courts refused to allow her medically necessary care.
Since Dobbs, Trump judges are still going after the rights of childbearing people
Trump district Judge Matthew Kacsmaryk has taken aim at a method used by millions of childbearing people to obtain abortions by issuing an injunction that effectively banned the abortion pill mifepristone, even though it was approved by the FDA decades ago. On appeal, Trump judges James Ho and Cory Wilson supported a ruling that severely restricted the abortion pill, although it did not go quite as far as Kacsmaryk’s injunction. In that opinion, Judge Ho had the temerity to justify his decision by pointing to the “aesthetic injury” doctors incurred by being deprived of the “delight in working with their unborn patients.”
The Supreme Court in 2024 neither agreed with the lower courts nor upheld the FDA’s approval of mifepristone. Instead, the Court unanimously ruled that the right-wing group that challenged the FDA did not have standing to sue. Other cases seeking to ban the pill are already pending in the lower courts.
Biden judges have had positive effects on reproductive rights despite Dobbs
One important case involved the federal Emergency Medical Treatment and Labor Act (EMTALA), which, according to the Justice Department, “guarantees access to abortions when necessary to stabilize emergency medical conditions that put a person’s health in serious jeopardy.” The Justice Department argued that these provisions took precedence even in states like Idaho that have severely restricted abortion. A three-judge panel of Trump judges let Idaho enforce a restrictive anti-abortion state law.
The Justice Department then obtained a full court rehearing by eleven judges to consider the issue. Biden Ninth Circuit judges Lucy Koh and Salvador Mendoza cast deciding votes in a 7-4 ruling in November, 2023, that blocked enforcement of Idaho’s law and preserved abortion rights in emergency situations while the case went forward.
Two months later, the Supreme Court granted review of the case, and put the Idaho law back into effect, blocking emergency abortions.
Then in June 2024, in an example of kicking the can down the road, the Court issued a 6-3 decision that did not rule on the merits, but did dismiss the grant of review and allowed emergency abortions to resume in Idaho as the case continues in the lower courts.
In another case, a Biden judge cast the deciding vote to uphold a federal requirement that Tennessee and other states must provide abortion referrals as requested by patients in order to get federal family planning funds.
The record is clear: more Trump judges will harm abortion rights and reproductive freedom
We can’t overemphasize the dangers of another Trump term. If he’s allowed to fill more federal judicial vacancies, or if he’s able to appoint new Supreme Court justices, the results will be devastating for generations. Now’s the time to act to ensure our courts protect our rights instead of destroying them.
