Trump’s Secret Political Weapon: Packing Courts With Anti-Abortion Judges

By Anisha Singh, Mia Villaseñor, Miriam Berg | July 22, 2019, 10 p.m.

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The unprecedented wave of unconstitutional abortion bans and extreme abortion restrictions moving across the country aren’t just happening because anti-abortion politicians have power in many states. They are also happening because politicians believe the courts will uphold restrictions on people’s health and rights. Why? Because President Trump wants to pack the federal courts with judges who oppose reproductive rights.

The truth is: Trump and other politicians have made a coordinated attack on abortion access, with the ultimate goal of overturning Roe v. Wade. They think they can get away with it — but we won’t let them.

Here’s what’s happened already, what to watch out for next, and how you can fight back.

Trump-Nominated Supreme Court Justices Have Encouraged Abortion Bans and Restrictions

With the Supreme Court appointments of Justices Brett Kavanaugh and Neil Gorsuch — both of whom have records of voting to restrict reproductive rights —  Trump has tipped the balance of the Supreme Court away from protecting the right to safe, legal abortion.

But he didn’t stop there. Trump inherited over 100 open judgeships across the country when he took office. Trump acted quickly, setting a record for confirming the most federal appeals judges in a president’s first year. 

Since they’re in lifetime positions, Trump-nominated judges are positioned to rule on cases that affect reproductive rights for a generation. These judges will get to decide the fate of laws like the six-week abortion bans passed in eight states, as well as federal and state measures to “defund” Planned Parenthood. 

Circuit Courts Are Flipping Toward GOP-Appointed Majorities — and Are Ruling on Key Reproductive Rights Cases

As of late July 2019, 43 judges had been appointed to the nation's circuit courts of appeals since Trump became president — and two justices had been appointed to the Supreme Court. The vast majority of Trump's judges are members of the Federalist Society — a conservative legal association that wants to overturn Roe v. Wade and has been described as the administration’s “pipeline” to the Supreme Court.

After over two years of rushing through judicial nominees, Trump has steadily moved the circuit courts toward having a majority of GOP-appointed judges.

Here are just a few cases majority-conservative courts have ruled on, or may rule on soon. Warning: This is cause for alarm. But keep reading to learn what you can do to protect reproductive rights.

Ohio

The harm that Trump judges are inflicting is exemplified by how the Sixth Circuit Court of Appeals ruled to obstruct patients’ access to care at Planned Parenthood in Ohio. 

• Trump has put six judges on the Sixth Circuit. 

• The Sixth Circuit voted against Planned Parenthood patients and in favor of a law to “defund” Planned Parenthood, blocking patients who use certain critical public health programs from getting preventive care and education from Planned Parenthood.

Kentucky

The Sixth Circuit is also deciding important cases from Kentucky:

• The Sixth Circuit voted against a Kentucky abortion provider — upholding a law forcing all abortion providers in the state to administer a medically unnecessary ultrasound, describe it to patients, and play aloud the cardiac electrical activity. The law is intended to shame patients seeking safe, legal abortion care. 

• Planned Parenthood and another provider are challenging laws that force abortion providers in the state to have transfer agreements with a local hospital and a transport agreement with ambulance services. Both agreements are difficult and sometimes impossible to obtain. These targeted restrictions against abortion providers (TRAP) laws are intended to stop abortion providers from operating, and in fact would shut down the only abortion provider in the state if they are upheld.

Looming Legal Challenges: Unconstitutional Abortion Bans

Other cases coming to courts with Trump-appointed judges include challenges to extreme, unprecedented and unconstitutional abortion bans. These dangerous bans have passed in seven states, and challenges to the laws could end up in the following circuit courts. 

Alabama in the 11th Circuit 

• In May, Alabama passed a near-total abortion ban that keeps abortion out of reach for most women at all stages of pregnancy. 

• Under Alabama’s law, doctors who provide abortion could be charged with a felony and thrown in prison for up to 99 years. Planned Parenthood Southeast and the ACLU filed a lawsuit challenging the law in federal court (District Court of the Middle District of Alabama). 

• The case is likely headed to the Eleventh Circuit Court of Appeals. The Eleventh Circuit’s 12 active judges include six GOP-nominated judges, three of whom are Trump appointees.

Georgia in the 11th Circuit

• In May, Georgia Gov. Brian Kemp signed a six-week abortion ban into law, which has been challenged by Planned Parenthood and other providers. Potential next stop: the Eleventh Circuit Court of Appeals.

Missouri in the 8th Circuit

• In May, Missouri Gov. Mike Parson signed an eight-week ban into law. Planned Parenthood and the ACLU filed a lawsuit challenging the ban. 

• Headed to the Eighth Circuit Court of Appeals, which includes four Trump-nominated judges, entrenching its status as majority anti-reproductive health.

Kentucky and Ohio in the 6th Circuit

• In March, Kentucky Gov. Matt Bevin signed a six-week abortion ban into law. A federal court (District Court for the Western District of Kentucky) temporarily blocked the law. Headed to: Sixth Circuit Court of Appeals. The Sixth Circuit’s 16 active judges include 11 GOP-nominated judges, and six of them are Trump nominees.

• In April, Ohio Gov. Mike DeWine signed a six-week ban into law. Planned Parenthood and the ACLU have filed suit against the ban in Ohio. Headed to: the Sixth Circuit Court of Appeals.

Mississippi and Louisiana in the 5th Circuit

• In March, Mississippi Gov. Phil Bryant signed a six-week ban into law. A federal court (the district court for the Southern District of Mississippi) temporarily blocked the law. Headed to: Fifth Circuit Court of Appeals. The Fifth Circuit’s 16 active judges include 11 GOP-nominated judges; five of them are Trump nominees.

• In May, Louisiana Gov. John Bel Edwards signed a six-week ban into law. The measure will take effect if the Fifth Circuit Court upholds Mississippi’s nearly identical law.

Another 10 states have introduced six-week abortion bans: Florida, Illinois, Maryland, Michigan, Minnesota, New York, South Carolina, Tennessee, Texas, and West Virginia. 

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Overwhelmed? We hear you. The judges’ records are so terrible — and the threat posed by these dangerous laws to women’s lives is so great — that we declared a state of emergency for reproductive health. But you have the power to help. 

Tags: Federal Courts