As America deals with the seismic information, through a leaked draft opinion, that the US Supreme Court is set to overturn Roe v. Wade – a landmark 1973 ruling that guarantees the right to abortion – the men and women who make up that powerful institution are under scrutiny.   

In 2016, Donald Trump said that if he became the President of America, he would appoint Supreme Court justices to overturn Roe v. Wade. It would “happen naturally,” said Trump, also declaring, “I’m pro-life”. He had been asked in a presidential debate against his Democrat rival Hilary Clinton if he wanted the Supreme Court to reverse the Roe v. Wade decision. 

Also read: Roe v. Wade: What does the leaked draft mean for the US Supreme Court?

During his tenure as President, Trump appointed three Supreme Court Justices – Neil Gorsuch in 2017, Brett Kavanaugh in 2018, and Amy Coney Barrett in 2020, controversially just days before the Presidential election that he lost to Joe Biden. 

Barrett replaced the liberal Ruth Bader Ginsburg upon her death, giving the Supreme Court a 6-3 conservative majority.

At the time of Barrett’s appointment, Trump said there was a possibility his pick would be involved in revisiting the landmark 1973 decision that gave women abortion rights. Noting that he hadn’t discussed abortion with Barrett before picking her, the then-President described the Supreme Court justice as being “certainly conservative in her views”.

Also read: If Roe v. Wade falls: First they came for abortion, then…

The leaked draft opinion authored by Justice Samuel Alito and published earlier this week by the website Politico, indicates that five conservative justices favour overturning Roe v. Wade, among them Donald Trump’s three appointees. 

As nominees to the US Supreme Court, they answered questions on their stance on Roe v. Wade. Here’s what they had said then. 

Neil Gorsuch

At the time of his appointment, Justice Gorsuch said he would “have walked out the door” if asked by Donald Trump to revoke Roe v Wade, adding “That’s not what judges do.” 

Gorsuch also ended up defending the precedent during his confirmation hearing. “Part of the value of precedent – and it has lots of value, it has value in and of itself, because it is our history and our history has value intrinsically. But it also has an instrumental value in this sense: it adds to the determinacy of law”, he said, adding, “Once a case is settled, that adds to the determinacy of the law. What was once a hotly contested issue is no longer a hotly contested issue. We move forward.”

Also read: A new America: What happens if Roe v Wade falls

Brett Kavanaugh

Donald Trump’s second appointee said during his confirmation hearing that the decision was “settled as precedent”.

At the time, Justice Kavanaugh had noted, “And one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992”.

Defining “settled law” Kavanaugh said it is “settled as a precedent of the Supreme Court”, adding it should be “entitled the respect under principles of stare decisis”, which means precedents shouldn’t be overturned unless there’s significant reason.

Also read: If Roe v. Wade falls: What Canada thinks of SCOTUS’ draft opinion

Amy Coney Barrett

Donald Trump’s final nominee doesn’t consider Roe v Wade a “super precedent” as per NPR. Barrett, during a Senate Judiciary committee hearing clarified that a “super precedent” is one where the ruling is “so well settled that no political actors and no people seriously push for their overruling”, before adding “And I’m answering a lot of questions about Roe”.

According to the Supreme Court Justice, this indicates “Roe doesn’t fall in that category” and “it’s not a case that everyone has accepted.”

When asked at her confirmation hearing how a hypothetical conservatively inclined Supreme Court might impact access to abortions, Barrett said, “Roe’s core holding that, you know, women have a right to an abortion – I don’t think that would change. But I think the question of whether people can get very late-term abortions, how many restrictions can be put on clinics – I think that would change”.

Also read: SCOTUS’ Roe v. Wade draft opinion leaked, so did the original judgement

Barrett has consistently spoken against the landmark Supreme Court decision. As a Notre Dame law professor, she pointed to the “barbaric legacy” of Roe and called for the need of “unborn to be protected in law”.

Other conservative justices Clarence Thomas and the author of the 94-page leaked draft opinion Samuel Alito have publicly pressed for Roe v Wade to be reconsidered. “Roe was egregiously wrong from the start,” Alitio has said in his draft opinion, which the Supreme Court has confirmed is authentic. 

Then there is Chief Justice John Roberts who has had a fine-tuned stance on Roe v Wade. During his confirmation hearing, Roberts had said Roe v Wade deserves respect under “stare decisis” and that arguments during past administrations reflected his professional advocacy, not his personal views.

Also read: ‘Off our bodies’: The war cry of pro-Roe v Wade protestors in US

A lifelong Catholic, Roberts was in charge of the 1991 case Rust v Sullivan as deputy US solicitor general. He argued for the then-Bush administration that health clinics receiving federal funding couldn’t provide abortion counseling. At the time, the Bush administration in a brief signed by Roberts had said, “We continue to believe that Roe was wrongly decided and should be overruled”.

A year later came the 1992 Planned Parenthood v. Casey case. Roberts commented on this, saying “Casey reaffirmed ‘the most central principle of Roe v. Wade,’ ‘a woman’s right to terminate her pregnancy before viability,'” during a Louisiana case in 2020.

While Roberts has previously broken from other right wingers in his decisions, and is neither as publicly critical of Roe v Wade as Barrett, nor as rigid in his anti-abortion rulings as Kavanugh, he believes balancing government interests and woman’s reproductive rights is better left to “legislators not judges”, as the Louisiana case shows.

Also read: Justice Kavanaugh’s kingmaker critical of his ‘inconsistent’ take on Roe v Wade

As Roberts leads a Conservative bench that looks poised to overrule Roe v Wade, the Chief Justice has the responsibility of steering the discussion and if he’s in the majority, he will also assign the opinion to speak for the court.

This is a pivotal moment for abortion rights in the US and all eyes are on the Supreme Court, led by a man who has repeatedly tried to inspire public confidence in the federal judiciary, arguing that the opinions reflect the judges’ impartial and neutral views, rather than political instincts.

The Roe v Wade decision was made on January 22, 1973, in a 7-2 Supreme Court vote, ruling that governments lack the power to prohibit abortions. It was based on the decision that a woman’s right to terminate a pregnancy stems from personal choice in family matters, protected under the 14th Amendment of the US Constitution.

If Roe v Wade is overturned, many US states have trigger laws in place that will immediately ban abortion.