Americans have become accustomed to toxic election battles in recent years. But partisan fights may take on an even nastier and interstate nature when the Supreme Court overturns Roe v. Wade and sends abortion policy back to the states this summer. A proposition which seemed likely even before the court’s new ruling on Texas’s SB8.
A Majority against Roe?
In the oral arguments for Dobbs v. Jackson Women’s Health, at least five justices seemed to express support not just for upholding Mississippi’s 15-week abortion ban, but overruling Roe and Planned Parenthood v. Casey wholesale. It’s well known that justices Thomas, Alito, and Gorsuch have no love for Roe’s legal foundation. Thomas called Roe “grievously wrong” in a 2020 dissent, with Gorsuch and Alito arguing that abortion providers had no standing to challenge abortion restrictions in that same case.
Justices Kavanaugh and Barrett, two key votes, asked questions that seemed sympathetic to the state during oral arguments. While oral arguments aren’t always predictive, justices do use them to try out their own arguments and “debate” each other. Justice Kavanaugh specifically seemed to preview how the majority may rebut dissents from the liberal wing of the court. He asked Mississippi’s Solicitor General:
And to be clear, you’re not arguing that the Court somehow has the authority to itself prohibit abortion or that this Court has the authority to order the states to prohibit abortion as I understand it, correct?… And as I understand it, you’re arguing that the Constitution is silent and, therefore, neutral on the question of abortion? In other words, that the Constitution… leaves the issue for the people of the states?
Kavanaugh’s question is correct in that the end of Roe would not outlaw abortion nationwide. No sitting justice has publicly suggested such a theory. Rather, states would be in control of abortion policy, with some banning the practice and others protecting it. But regardless of the legal merits of such a decision, there is little doubt that it would ratchet up tensions not only within states but between them as well.
A Post-Roe United States
So how would this happen? In the immediate aftermath of that ruling, chaos would reign. The Washington Post found that 20 states have anti-abortion laws from before Roe which were never repealed or have a clause to explicitly “trigger” when Roe is overturned. Presumably all 20 of these bans would become enforceable upon the end of Roe. The Guttmacher Institute estimates that 26 states are likely to ban abortion either by operation of law or by legislation after the court ends Roe. Many states explicitly protect abortion, but many have no laws on the books, leaving abortion in legal limbo.
This is where the partisan fights would ramp up. Blue states may try to copy California’s recently published plan and become “sanctuaries” for abortion access. California’s plan includes funding things like gas and lodging for out of state women seeking abortions in the state. It also includes steps to frustrate the enforcement of other state’s bans on abortions performed within California. For example, by calling for the state to protect providers who are sued for “aiding and abetting” abortions under laws similar to Texas’s SB8. Of course, some of these laws would run into constitutional issues, creating more divisive court fights. On top of that, extra-legal networks of doctors and activists would pop-up. No doubt providing underground abortions and a black market for abortion pills in states where they become banned.
Once laws and networks frustrate red states’ efforts to prevent abortions, they will no doubt respond in turn. Further enforcement measures could run into their own issues. For example, laws regulating travel to other states could run afoul of the right to travel, recognized by courts since 1823. States might also run into 8th Amendment issues if they attempt to defer providing abortions through extremely stiff prison sentences or even death. But the arms race would only continue, with blue states consistently trying to frustrate the enforcement of new laws. Not to mention, private actors could pour salt in the partisan wound if major corporations “pick sides” through their actions.
An Abortion Arms Race
Elections would become direct arms races within states and between states. States could see sea sickness-inducing swings in their abortion policy year to year based on who controls government. Politicians in states like New York could see it as politically advantageous to promise increasingly bold measures to counteract restrictions in other states.
Regardless of the merit of any of these actions, they will pit states against each other in an unprecedented way. The issue of abortion will be on the ballot in every election in every state. The results of an election in New Mexico could radically change the practical legality of abortion in Texas. Activists would pressure national parties to do something federally. Any national action would stoke partisan tensions even more. Private companies that have a choice on whether or not to stop doing business in states with strict abortion restrictions could be seen by partisans as choosing sides no matter what they do.
The partisan firestorm that has surrounded American politics is going to get much worse before it gets better.
