After Roe's Demise, the Abortion Wars are Just Beginning
As Justice Alito's opinion in the case of Dobbs v. Jackson sinks in across America, many commentators are coming to realize that eviscerating Roe v Wade and Planned Parenthood v. Casey is just the beginning of the abortion wars. Alito's opinion will have far-reaching consequences that will tear this country apart for decades.
1. Some contraceptives will face bans in red states. Because of Alito's ruling in Dobbs v Jackson, conservative states will quickly pass laws prohibiting types of contraceptives that act after conception like the IUD and the morning-after pill. In his concurring opinion in Dobbs, Justice Clarence Thomas seems willing to go even further to overrule Griswold v. Connecticut, the case that established the right to buy and use contraceptives without government restriction.
2. Many states will pass abortion prohibitions without exceptions for rape and incest. In the past, anti-abortion advocates have said that they support exceptions in cases of rape or incest. However, that's changed today, and women impregnated in such circumstances would be forced to give birth to their attacker's child in many states.
The Atlantic: "In the past few years, though, the anti-abortion movement has moved in a different direction. In 2019, Alabama legislators passed an abortion ban that lacked rape and incest exceptions. Nine other states—Arkansas, Kentucky, Louisiana, Mississippi, Missouri, Ohio, Oklahoma, Tennessee, and Texas—have passed similar laws."
And, just this March, Arizona passed an abortion ban without those exceptions.
3. Murder charges for women who seek abortions. Anti-abortion activists have long said that they only intend to prosecute those that perform abortions, not the women who obtain them. Don't believe them!
First, if you believe that abortion is murder, then the women who obtain them are committing a vile crime. In an unguarded moment, that's what almost every anti-abortion zealot will tell you and it's already happening.
Washington Post: “Republicans in the Louisiana House advanced a bill Wednesday that would classify abortion as homicide and allow prosecutors to criminally charge patients."
Second, medication abortions now account for over half of all abortions. Once abortion is outlawed in half the states, clinics will close and medication abortions will increase further. In those cases, the only one to punish will be the woman who takes the medications. Zealots will demand that someone be punished so legislation to prosecute those individuals will follow quickly.
4. Anti-abortion states will soon try to criminalize out-of-state abortions. Poor women in conservative states will face the cruel choice between an unsafe abortion or an unwanted child, but women with savings will travel to places where abortion is legal. That will infuriate anti-abortion activists.
Generally, states can't enforce their laws outside their jurisdiction, but some states are already considering laws to prevent women from obtaining abortions in neighboring states.
BloombergLaw: “It’s going to be an invitation to states to innovate in restricting and banning abortion,” said David S. Cohen, a professor at Drexel University’s Thomas R. Kline School of Law in Philadelphia, who’s authored an upcoming article on cross-state legal issues that could arise in the context of abortion rights. “There are going to be a number of states who are not satisfied with just knowing that there’s no abortion happening in their own state. They’re going to want to do more than that.”
Anti-abortion legislators and prosecutors will likely make the argument that planning the trip out of state is a crime itself, something like a "conspiracy to commit abortion."
BloombergLaw: "Prosecutors could argue that as long as some part of the crime took place in the state, then they are allowed to have jurisdiction and developing the guilty intent to travel may be enough, Cohen said."
"If a young woman and her best friend decide in Missouri they’re traveling to Illinois to get an abortion, the criminal intent has taken place in Missouri, he said."
5. A national abortion ban: Despite recent comments from some in Congress that abortion laws should be left to the states, anti-abortion activists will now begin a campaign for a national abortion ban. They are already gearing up for it.
For instance, former Vice President Mike Pence praised the Dobbs's ruling yesterday saying, “today, life won,” and added, "having been given this second chance for life, we must not rest and must not relent until the sanctity of life is restored to the center of American law in every state in the land.” That will become the mantra of every Republican seeking national office, and later in the day House Minority Leader Kevin McCarthy agreed that the work of antiabortion conservatives is “far from done."
Republicans don't have enough votes for a national ban in the House and Senate today, but they hope to gain dozens of House and Senate seats in the Fall midterm elections.
6. What will be the next Constitutional right to Fall. Justice Alito’s opinion says that Roe was wrongly decided because it protects a right not mentioned in the Constitution, nor traditionally protected in America. That argument would apply to many other unenumerated liberties that the Supreme Court established under its interpretation of the Liberty and Due process Clauses of the 14th Amendment.
University of North Carolina constitutional law professor Andy Hessick reminded us several weeks ago that Alito’s reading of the Constitution would undercut many of the civil rights decisions the Court has made including same-sex marriage.
WRAL: “In the 1960s [and] ‘70s, there were a number of rights that were recognized, like the right to birth control, the right to marriage, the right not to be subjected to sterilization,” Hessick said. “All of them potentially could now be questioned under the reasoning that we should look only to those rights that were recognized back at the time of the ratification of the 14th Amendment.”
Political Wire: “Supreme Court Justice Clarence Thomas on Friday called for overturning the constitutional rights the court had affirmed for access to contraceptives and LGBTQ rights in an opinion concurring with the majority to decision to overturn Roe v. Wade."
New York Times: “Some legal experts have raised concerns that justices could apply the argument for overturning Roe to limiting access to contraceptives. As a result, those who support birth control access worry that legislators could use a ban on abortion to make birth control less available.”
If you thought our nation was divided before Alito's opinion, just wait; it's about to get much worse. And, unfortunately, the lives of many young women will be destroyed in America's new abortion wars.
Note: This piece was updated from one we published after Alito's draft opinion was circulated.
By: Don Lam & Curated Content