In his draft opinion quashing Roe v. Wade, Judge Samuel Alito blamed the 1973 abortion decision for fueling “a national controversy that has embittered our political culture for half a century.” He quoted Judge Antonin Scalia as saying: “Roe fueled an issue that has inflamed our national politics in general, and has since obscured the selection of judges for this court in particular with his smoke.”
Historically, the idea that Roe ignited the American culture wars is a perversion at best. The 7-2 decision wasn’t nearly as politically divisive when it was passed as it is today. Catholics were against it, but many conservative evangelicals were not; the Southern Baptist Convention passed a resolution in 1971 calling for legal abortion in some circumstances, then reaffirmed it in 1974. As Dartmouth historian Randall Balmer has argued, evangelical leaders didn’t grab Roe until the contemporary religious right took hold. in the late 1970s, largely in response to the IRS stripping segregated Christian schools of their tax exemptions.
But even if Roe had let go of the forces tearing this country apart, its end still would bring no relaxation. Instead, the demise of Roe will exacerbate America’s contradictions, creating more raging legal rifts between states than we’ve seen in modern times.
“If you think it’s polarized now, you haven’t seen anything yet,” said Mary Ziegler, a visiting professor at Harvard Law School and author of the forthcoming book “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.”
If the Supreme Court really rejects Roe and Planned Parenthood v. Casey, the 1992 decision it partially upholds, we’ll have two completely different abortion regimes in this country. About half of the states are expected to largely ban abortion; according to the Guttmacher Institute, 11 states won’t even have rape and incest waivers. A bill passed by the Louisiana legislature would allow prosecutors to charge those undergoing abortions with manslaughter.
Meanwhile, blue states are setting themselves up as abortion havens. Oregon lawmakers recently passed a bill to create a $15 million fund to help cover the cost of abortion, including for those traveling to the state for the procedure. Something similar is in the works in California. Abortion clinics in Illinois, bordered by several states where abortion is likely to be made illegal, are preparing for a huge influx of patients.
The right won’t be satisfied to watch liberal states try to undermine abortion bans. As the draft of a forthcoming article in The Columbia Law Review puts it: “Overthrowing Roe and Casey will create a new world of complicated legal conflicts between jurisdictions over abortion. Rather than create stability and certainty, it will lead to deep confusion as advocates from all sides of the abortion controversy will not stop at state lines in their efforts to apply their policies as widely as possible.”
A Missouri lawmaker has already introduced a measure that would allow citizens to sue anyone who helps a Missouri resident obtain an abortion outside of the state. More such proposals are likely to follow. Under a law passed in Texas last year, people in other states who mail abortion pills to Texas residents could be extradited to face felony charges, although authorities in liberal states are unlikely to cooperate.
Pending such legislation, Connecticut just passed a law intended to protect doctors and patients. Among other things, it ensures that no one can be extradited to another state for performing or obtaining an abortion that is legal in Connecticut, and ensures that people charged under a law like the one proposed in Missouri receive a counterclaim to recover their costs.
Experts don’t know how these kinds of battles between states will play out because there is so little precedent for them. If you’re looking for close parallels, Ziegler said, “you look at cases of fugitive slaves, because there aren’t many times in history that states try to tell other states what to do this way.” The point is not that abortion bans are morally comparable to slavery, but that they create potentially incompatible legal frameworks.
Conservatives, of course, have a plan to reconcile conflicting abortion laws — a federal abortion ban. Speaking to NBC News this week, North Dakota Senator Kevin Cramer said he was concerned about women traveling across state lines to have abortions. “I don’t find much comfort in that just because it didn’t happen in my state,” he said. “So yeah, I guess you could expect pro-life activists to push for federal protection.” According to The Washington Post, Joni Ernst, a Republican senator from Iowa, plans to introduce a bill to ban abortion after six weeks.
It won’t pass as long as the Democrats are in power, but at some point there will almost certainly be a Republican president and a Republican Congress. It’s easy to imagine conservative activists demanding that their leaders jettison the filibuster to push through a national abortion ban. It’s hard to imagine the Republican senators who championed the filibuster putting procedural principle above one of their base’s most cherished goals.
But long before we get there, Roe’s death will amplify our national animosity, turning red states and blue into mutually hostile legal territories. Do you think we hate each other now? Just wait for the new round of lawsuits to begin.
