Why Trump's next U.S. Supreme Court pick isn't likely to spell reversal of Roe vs. Wade

Whoever it ends up being, U.S. President Donald Trump's nominee to replace retiring Supreme Court Justice Anthony Kennedy won't likely tip the balance so far right as to end legal abortion, Supreme Court experts say.

At least not the way many progressives and pro-choice advocates fear.

Trumpvowed in 2016 that, if elected, he would install judges on the nine-court bench who would overturn Roe vs. Wade, the landmark 1973 decision that gave women the constitutional right to have abortions.

On Monday night, he's expected to announce his second Supreme Court nominee, the first, Neil Gorsuch, having been confirmed last April.

Choosing from a list of pre-vetted, right-leaning judges compiled by the conservative Federalist Society and the Heritage Foundation, Trump has reportedlywinnowedhis choices to three federal appeals judges: AmyBarrett, Brett Kavanaugh and Raymond Kethledge.

Kennedy's departure, expected at the end of this month,leaves the court evenly split along partylines, with four justices having been appointedbyDemocratic presidents and four byRepublicans. Which is why some on the left fear that the appointment of a staunchly conservative ninth member, who would not deliver the non-partisan swing vote that Kennedy provided, could tip thebalance squarely into the Republicancamp.

Standing by decisions

Still, legal scholars say preserving the court's integrity as a dependable institution remains a compelling reason to protect Roe vs. Wade, regardless of who gets the appointment.

For them, it comes down to stare decisis(Latin for "to stand by decisions"), the judicial doctrine that promoteslegal consistency and stability in rulings.

"Everyone will say they're a believer" in the principle, said Lisa Tucker, a Supreme Court expert who lectures at Drexel University in Philadelphia.

"Stare decisis is the very first thing I teach on the very first day of law school. And if a judge said he or she didn't believe in stare decisis, that would be incredibly alarming, and hopefully disqualifying."

The Roe decision could well survive the loss of Kennedy's swing vote and the nomination of a new Trump-approved justice if, as expected, Chief Justice John Roberts, appointed by George W. Bush, assumes therole of the swing vote.

The Supreme Court tends to avoid overturning longstanding doctrines, particularly those with a pronounced social or political impact on the country.- JonathanTurley,George Washington University law professor

"Roberts is aninstitutionalist," keen to protect the court's precedent-setting integrity,says JonathanTurley, a law professor at George Washington University in D.C.

"The Supreme Court tends to avoid overturning longstanding doctrines, particularly those with a pronounced social or political impact on the country."

If it hasn't been overturned in the decades since, it's unlikely that would happen now, says Ken Klukowski,the senior counsel for the religious-freedom group First Liberty.

"This has been an issue that liberal activist groups have been scaring voters with for decades. It happened with [former justices] Sandra Day O'Connor, David Souter and Anthony Kennedy and all of them voted to reaffirm Roe vs. Wade. It's still there."

Access to abortion could still get harder

Just because Roe won't likely be overturneddoesn't mean access to legal abortion isn't about to get a lot harder.

It's more probable that a new conservative majority on the bench would support "chipping away at" Roe vs. Wade through a series of narrowing decisions rather than a single reversal of the precedent, Turley said.

Even if Roe stands, there are otherways legal abortion could be put in peril.

"Death by a thousand cuts," said Harvard Law School medical ethicist Glenn Cohen, an expert on the Supreme Court. "Slowly, you'll see increasingly restrictive abortion laws that don't directly overrule Roe vs. Wade passing muster."

In 2016, for example, the Supreme Court struck down a Texas law restricting abortions in the case Whole Woman's Health vs. Hellerstedt in a 5-3 vote. Justice Kennedy was among the dissenting opinions. Afifth conservative judge on the bench might have changed that outcome.

Cohen says it's likely this incremental erosion of reproductive rights would create "a red-blue divide" wherebyabortion in the most conservatives states remains technically legalbut severely restricted.

Hand-picked conservatives

Trump's final three possible nominees Barrett, Kavanaugh and Kethledge all come pre-approved by conservative lawyers. The president told Fox News he won't ask any of the candidates how they'd vote on overturning Roe vs. Wade.

He wouldn't have to anyway, says constitutional law expert Peter J. Smith. That the judges made it onto the Federalist Society-Heritage Foundation list in the first place solidifies their conservative credentials.

Barrett's devout Catholicism and membership inthe faith order People of Praise is seen as an indicator she would lean toward supporting decisions that restrict access to abortion. Smith said Kavanaugh has a long record of judicial writing consistent with the view that the Roe decision was wrong.

Kethledge, he said, is viewed as "the most moderate" of the finalists.

It's a "working assumption" that any of Trump's nominees will favour overturning Roe vs. Wade, says Dick Howard, with the University of Virginia school of law.

Tucker doesn't buy theargument that the prevailing justice willdisregard their own anti-abortionviews in order to protect precedent. Settled precedents have been overruled before. Andthe court has recently shown willingness "to use stare decisis selectively," she said.

Last week, for example, the court overturned a 40-year-old precedent on public sector unions in the Janus vs. AFSCME labour union case, ruling that non-union workers can't be forced to pay fees to public sector unions.

"Roe is in that same time period," Tucker said. "So, we've seen the justices willing to say, 'No, we disagree with what those past justices said, and we're making a new rule now.' And I don't see why that couldn't happen here, too."

Would need a lower court challenge first

To conservatives, that sounds like liberal hysteria.

Elizabeth Slattery, a legal fellow with the Heritage Foundation, says she's heard this song before.

"The U.S. Supreme Court does not pluck issues out of the news and decide to rule on them," she said. "They only hear cases that have been brought up through the lower courts and have percolated for a while."

It's no small feat to reverse the abortion law. The highest court in the land only hears about one per cent of cases petitioned, after all.

To overturn Roe vs. Wade, a case would first have to be brought in a lower court that involves outlawing abortion. Tucker said test statutes challenging the law through federal courts couldeventually "beused as a vehicle to overrule Roe vs. Wade."

Yetmuch of the table settingis already being putin place. The Trump administration has in recent months sped through a record number of conservative judicial appointments. If the matter goes to the Supreme Court and four of the justices on the high court vote to accept the case,both parties in the case would file legal briefs. If the justices deem it necessary,each side would present oral arguments and an eventual opinion would be written.

In the end, this isn't the president's choice alone.- LisaTucker,Supreme Court expert, DrexelUniversity

Five votes would be needed to overrule a settled precedent, and Justice Roberts could still rule to uphold the precedent. It would take a long time to getto that stage, though.

Once Trump announceshis nominee Monday, that personmust then clear a confirmation and majority vote in the Senate. Republicans have a slim 50-49 majority in the upper chamber, but Susan Collins andLisa Murkowski, two Republican moderate senators, might be unwilling to supporta nominee keen to undo Roe vs. Wade.

"In the end," Tucker noted, "this isn't the president's choice alone."