The Supreme Court’s decision in Roe v., which for nearly fifty years has ensured Americans’ right to make their own decisions about abortion. Two and a half years after he overturned the Wade case, voters re-elected President Donald Trump, who packed the Court with justices who made that decision. this immediately. Many observers expected female voters to defeat Trump in what some said was a “Hell hath no fury” election. But although Democrats have a sizeable advantage for women on November 5, the gap appears to be smaller than it was for Joe Biden four years ago or Hillary Clinton in 2016. Exit polls show a majority of voters, including fifty people. Three percent of white women rejected female candidate Kamala Harris, who has made the restoration of reproductive freedom a passionate centerpiece of her campaign.

It may be tempting to conclude that most Americans approve of the Supreme Court’s 2022 Dobbs decision, which declared Roe “deeply wrong.” However, survey after survey shows that this is not the case. In fact, the election provided further evidence that even in red states, a majority of voters fervently support abortion rights. Seven states (Arizona, Colorado, Maryland, Montana, Missouri, New York, and Nevada) have passed various ballot measures protecting abortion. Voters in the eighth state, Florida, approved a similar measure by more than fifty-seven percent, only to fail to pass it because of the required sixty percent threshold. Similar ballot initiatives failed in two other states, Nebraska and South Dakota.

But all but three of the states that passed ballot measures protecting abortion rights appear to have voted to send Trump back to the White House. This contradictory result suggests that although a majority of American voters support abortion rights, they do not accuse Trump or the Supreme Court he created of undermining those rights. Although Democrats see abortion as an issue (it ranks first with 14 percent of voters, according to exit polls), they have failed to make the Supreme Court itself an issue, despite the increasing extremes of decisions issued by the 6 of them. 3 conservative super majorities and yet sherry related to shocking revelations It documents the ethical lapses of many of the justices, all of which undermine public confidence in the Court.

“It’s clear that voters who support abortion rights don’t think the election will make much of a difference,” Mary Ziegler, a law professor at the University of California at Davis who focuses on reproductive issues, told me. Nothing could be further from the truth, Ziegler warned: “Although Democrats don’t talk much about it, Negative “It’s the last point the court can go on abortion.” Trump “did a good job of dodging and confusing” the issue, saying he was merely returning it to the states. In contrast, Ziegler thinks Harris’ “message was too backwards-looking” when she mentioned this. ‘Trump brought you the abortion ban,’ he said. But this happened in the past. Didn’t show how it would affect them future.” Legal issues are complex and often not well tested in focus groups. But Ziegler told me: “I don’t think people understand what could happen in Trump’s second term.”

The Harris campaign’s failure to explain how extreme the Supreme Court might become under a second Trump Administration could turn out to be a major political mistake. There are many ways judges can impose even more draconian restrictions on reproductive rights. For example, the Court could allow the Justice Department to enforce the Comstock Act of 1873, which criminalized the distribution of abortion-related paraphernalia through the mail, in a way that would allow that law to be used to prosecute doctors or pharmaceutical companies that ship abortion pills. patients. Both Trump’s vice president, J.D. Vance, and Project 2025, the Heritage Foundation’s policy plan for Trump’s second term, have endorsed the idea, and Ziegler believes the current Supreme Court may also sign off on it. He stated that it is also possible for the Drug Enforcement Administration under the Trump administration to withdraw medical abortion drugs from the market. “If this sparks a legal challenge, it is not inconceivable that the Court would support the Administration,” Ziegler said.

Meanwhile, at the state level, Republican attorneys general have already begun exploring new approaches to further criminalizing abortion care. A legal battle has been launched in Alabama over possible investigations into people who help patients get out of state for abortions. Anti-abortion lawmakers in red states are also seeking to pass “fetal personhood” laws, which would declare that an egg is a person with all the protections of the Constitution from the moment it is fertilized. Such laws would lead to court challenges to any law legalizing abortion. If a state law allowing abortion reaches the current Supreme Court, that law wouldn’t have to be struck down, but Ziegler said: “I don’t think you can rule out the possibility that that could happen later on.” “This is the endgame for the anti-abortion movement.”

Leaders of the conservative legal movement, meanwhile, see Trump’s election as a tremendous opportunity to push the Court even further to the right, shattering old guardrails and appointing a new generation of right-wing justices who could consolidate conservative control over the Court. decades. During Trump’s first term, he had the extraordinary opportunity to appoint three of the nine Supreme Court Justices: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. In his second term, if the two oldest conservative justices — Clarence Thomas, 76, and Samuel Alito, 74 — can be pushed into retirement, Trump could appoint more extreme justices to replace them.

Ed Whelan, a conservative lawyer and a former law clerk to Antonin Scalia, wasted no time in sending a smoke signal to the senior Justices that it was time for them to go. Just after Election Day, Whelan published an article on the subject. National Review Bench Memos blog, which gave Thomas and Alito gold watches whether they wanted them or not. “I expect Alito to announce his retirement in the spring of 2025,” Whelan wrote. As for Thomas, Whelan said he expects him to retire “in the spring of 2026.” Whelan acknowledged that many doubted that the famously stubborn Thomas would resign voluntarily. But Whelan, appearing to be a stern parent, wrote: “It would be foolish for Ruth Bader Ginsburg to risk repeating her mistake, namely to simply continue to die in office and be replaced by someone with a very different legal philosophy. He will realize that the best way to consolidate his legacy of jurisprudence is to ensure that a strong original author fills his seat and secures a genuine majority for decades to come.” Whelan noted that the five justices appointed by Trump could easily serve until 2045 if the two oldest conservatives were replaced by much younger ones.

Josh Blackman, a conservative professor at the South Texas College of Law in Houston, believes Alito might actually be happy to retire. “He can hang out at the Jersey Shore, go to the opera, and have fun without the media trying to destroy him,” he told me. “After Dobbs wrote his decision, what was left? Dobbs was the oldest. “He was the white whale and he caught it.”

But Blackman said in the short term, leaders of the conservative legal movement have more pressing concerns, such as a reversal of the Biden Administration’s stance on current Supreme Court cases. Blackman, for example, expects the Trump-appointed attorney general to see the wrong side of the pending Supreme Court case United States v. Skrmetti, challenging Tennessee’s 2023 ban on gender-affirming medical care for transgender minors. Biden’s attorney general sided with three transgender teenagers and their parents who claimed the law violated their constitutional rights. A Trump Attorney General could support the ban, making the case moot.

As Blackman notes, abortion may now “disappear” as a priority as the Supreme Court’s conservative majority turns to ever more challenging issues. Longtime feminist leader Gloria Steinem told me that the right’s restrictions on abortion could be the beginning of a larger attack on civil liberties, and not for the first time in history. He stated: “We must remember that one of the first things Hitler did when he was elected, and indeed was elected, was to declare abortion a crime against the state.”