WASHINGTON — In 2016, then-candidate Donald Trump pitched to Republican voters that even if they didn’t like him, they needed him for one big reason: the US Supreme Court. Not just to nominate conservative justices, but specifically to appoint anti-abortion justices who would roll back the protections of Roe v. Wade.
When the Supreme Court allowed Texas’s 6-week abortion ban to take effect on Sept. 1 — with three of Trump’s nominees in the five-justice majority — it was widely seen as the latest example of that bargain paying off for anti-abortion advocates.
But the Supreme Court’s refusal to intervene was the last in a series of legal dominos that had to fall for the Texas law, SB 8, to go into effect. How the fight unfolded before it reached the justices showed the lasting reverberations of a successful push by Trump, Senate Republicans, and the conservative legal movement to reshape the federal judiciary. Federal appeals judges confirmed to lifetime appointments since 2016 — including two members of the three-judge panel that teed up the SB 8 legal fight for the Supreme Court — have staked out anti-abortion stances and sided with states trying to restrict access to the procedure.
The Justice Department filed a new constitutional challenge to SB 8 just over a week after it took effect. Regardless of what happens next in the federal district court in Austin, the Biden administration will face the same barrier as the abortion providers who unsuccessfully tried to stop the law before Sept. 1: the conservative US Court of Appeals for the 5th Circuit.
Trump deepened conservative majorities in the 5th Circuit and other appeals courts that cover Republican-led states where lawmakers have either passed restrictive abortion laws or are mulling new ones. Federal judges are not bound to the policy preferences of the president who appointed them, but they are more likely to align with their politics and values, especially on the appeals courts.
Two weeks before SB 8 took effect, Trump-appointed judges on the 5th Circuit joined a ruling that upheld a different Texas law that restricted abortions. Earlier this year, judges nominated by Trump wrote opinions or joined the majority in validating an Ohio law that prohibits pregnant people from obtaining an abortion on the grounds that the fetus is diagnosed with Down syndrome and permitting Tennessee to enforce a 48-hour waiting period before a person can get an abortion. During the early months of the pandemic in 2020, Trump-nominated judges sided with states that sought to restrict abortions and other medical procedures on the grounds that healthcare providers needed to conserve protective equipment.
“The Trump circuit judges have been just as anti-abortion as he promised,” said Elliot Mincberg, a senior fellow at the liberal advocacy group People for the American Way, who tracks rulings made by Trump-nominated judges.
Most cases don’t reach the Supreme Court, which means circuit courts are often the last stop. It’s why Trump and Senate Minority Leader Mitch McConnell, then the majority leader, prioritized filling these powerful seats. That effort received significant financial and organizational support from conservative groups, including anti-abortion advocates.
The Biden administration is swiftly moving to fill open seats in the lower courts. But lifetime appointments mean the administration can’t do anything until a judge leaves or dies; Republican-appointed judges are far less likely to retire with a Democrat in office, and vice versa.
The 5th Circuit, which covers Texas, Louisiana, and Mississippi, had a conservative reputation before Trump took office. Trump bolstered the bench, nominating six of the 17 active judges; the court has 12 judges confirmed under Republican presidents. Those new members included Judges Stuart Kyle Duncan and Kurt Engelhardt, who were part of the three-judge panel that entered the order that allowed SB 8 to take effect.
Texas abortion providers filed a constitutional challenge to the law after Gov. Greg Abbott signed it in May. SB8 bans nearly all abortions after fetal cardiac activity can be detected, usually around the sixth week of a pregnancy. Pregnancy terms are counted from the first day of a person's most recent period, so week 6 is typically two weeks after a missed period, which is when many people realize they're pregnant. The law deputized private citizens to enforce the law by allowing them to sue anyone they suspected of performing an abortion or aiding a pregnant person in obtaining one; it provided hefty financial incentives and minimized the legal risk for filing a claim.
US District Judge Robert Pitman — the same judge now assigned to the Justice Department’s case — had been poised to hold a hearing on Aug. 30 about whether to block SB 8 while that case was pending. The defendants, who had unsuccessfully argued to have the suit tossed out, asked the 5th Circuit to intervene. On Aug. 27, Judges Duncan, Engelhardt and Edith Jones, a Ronald Reagan appointee, entered a one-paragraph order putting all district court proceedings on hold.
The abortion providers raced to the Supreme Court, petitioning the justices to lift the 5th Circuit order or halt the law themselves. Come midnight on Sept. 1, SB 8 took effect — not because the justices did something, but because they were silent and didn’t disturb the 5th Circuit’s order. It would be another 24 hours before the Supreme Court released its own 5–4 order confirming the decision to let SB 8 stand while the abortion providers’ case played out in the lower courts.
On Sept. 10, the 5th Circuit released another order from the same three-judge panel, which kept the case on hold while the court fully considers an appeal of Pitman’s early rulings that would allow the abortion providers’ lawsuit to go forward.
Civil rights groups had opposed the nominations of Duncan and Engelhardt in part because of their anti-abortion backgrounds. Before becoming a judge, Duncan worked in state attorneys general offices in Texas and Louisiana as well as for the Becket Fund for Religious Liberty, a conservative legal advocacy group, where he helped lead the fight against the contraception mandate in the Affordable Care Act. Engelhardt had been a member of a group of lawyers opposed to abortion in Louisiana before he became a district judge in the state in 2001.
Last year, Duncan joined the majority of a 2–1 order that allowed Texas to temporarily halt abortions as part of an executive order from Abbott that paused nonessential medical procedures during the pandemic.
Trump-nominated 5th Circuit judges have sided with Texas and anti-abortion advocates in earlier cases over the state’s efforts to restrict access to the procedure. On Aug. 18 — as the fight over the 6-week abortion ban was unfolding— the 5th Circuit ruled that Texas could enforce a 2017 law that prohibited doctors from performing a type of abortion method; providers had argued it would significantly limit options for pregnant people in their second trimester. Judge Don Willett, a Trump nominee, cowrote the majority opinion.
Judge James Ho, another Trump nominee, joined the majority and wrote separately to emphasize his support of the 2017 law. He’s made his anti-abortion position clear in several cases. In a 2018 concurring opinion, he described it as a “moral tragedy.”
When the court upheld an injunction blocking Mississippi’s 15-week abortion ban in 2019, Ho wrote separately that he was “forced” to join his colleagues in reaching that result because of US Supreme Court precedent, but he wasn’t happy about it. He blasted the federal district judge who originally blocked the Mississippi law. (The justices are set to hear the case, which could have nationwide consequences, in the next term.)
“The opinion … displays an alarming disrespect for the millions of Americans who believe that babies deserve legal protection during pregnancy as well as after birth, and that abortion is the immoral, tragic, and violent taking of innocent human life,” Ho wrote.
In the 6th Circuit, which covers Kentucky, Michigan, Ohio, and Tennessee, Judge Amul Thapar — Trump’s first federal appeals court nominee — has emerged as a leading anti-abortion voice on that bench. On Sept. 10, that court issued a decision blocking a Tennessee law that imposed a set of early-term abortion bans. Thapar joined the decision but wrote separately to say that he wasn’t happy about it. The court was bound by Supreme Court precedent to strike down any previability abortion ban, he acknowledged, but he then urged the justices to change that.
“Roe and Casey are wrong as a matter of constitutional text, structure, and history,” he wrote. “By manufacturing a right to abortion, Roe and Casey have denied the American people a voice on an important political issue.”
Judge Ralph Erickson of the 8th Circuit, a Trump nominee, issued a similar call in January for the Supreme Court to revisit the precedent that protects the right to an abortion before viability — the point in a pregnancy when a fetus is considered able to survive outside the womb, usually around 24 weeks. The 8th Circuit covers Arkansas, Missouri, Iowa, Minnesota, North Dakota, South Dakota, and Nebraska.
“By focusing on viability alone, the Court fails to consider circumstances that strike at the core of humanity and pose such a significant threat that the State of Arkansas might rightfully place that threat above the right of a woman to choose to terminate a pregnancy,” Erickson wrote.
Other judges have noted the anti-abortion positions of their newest colleagues. In February, the 6th Circuit issued a 2–1 decision blocking Tennessee’s 48-hour waiting period for the procedure. Thapar dissented. Judge Karen Nelson Moore, a Bill Clinton nominee, called out Thapar’s “zeal to uphold what appears to be yet another unnecessary, unjustified, and unduly burdensome state law that stands between women and their right to an abortion.”
The full court agreed to rehear the case, and last month it issued a 9–7 decision allowing Tennessee to enforce the waiting period. All six of Trump’s nominees to the court were in the majority; Thapar wrote the opinion.