The looming fight over a federal abortion ban

During the 2016 presidential debates, then-candidate Donald Trump envisioned a future in which abortion rights would “go back to the states, and the states [would] make a determination.” For many who oppose the overturning of Roe v. Wade, this is assumed to be conservatives’ logical end goal: turning America into a patchwork quilt of abortion rights tailored to the values of individual conservative, moderate, and liberal states. But the signing on Wednesday by Alabama’s governor of one of the strictest abortion bans in the country shows such an assumption is dangerously incorrect.

Supporters of extreme abortion bans aren’t just trying to get the conservative-majority Supreme Court to overturn Roe v. Wade and make the legality of abortion a state-by-state decision. The end game is to provoke federal legislation that would ban abortions nationwide.

While Roe v. Wade has been under attack by conservatives and religious groups since the ruling in 1973, President Trump’s bolstering of the conservative side of the bench has re-energized pro-life movements across the country. The Planned Parenthood Federation of America and the Guttmacher Institute, a reproductive rights research and advocacy nonprofit, report that in 2019 alone, 250 abortion restrictions were introduced in 41 states. “We’ve never seen states passing near-total abortion bans,” the Guttmacher Institute’s senior state issues manager, Elizabeth Nash, told the Los Angeles Times. “This is new and different.”

Although Trump-appointed Supreme Court justices have said they’d honor the 1973 ruling on Roe, it’s hard not to look at the emboldened Alabama legislature and wonder what will happen if the Court does hear the case. Roe v. Wade established the precedent that abortions in the first two trimesters of a woman’s pregnancy could in no way be prohibited by the government. Key to this ruling was the Court’s establishment that a fetus is not a “person,” and therefore not protected by the Constitution’s use of that word. Alabama’s Human Life Protection Act presents the court an opportunity to overturn this long-standing precedent by flagrantly violating the ruling in observation of “fetal personhood.” The Alabama legislature even went as far as to vote down exemptions in the bill for rape and incest victims: “It has to be 100 percent a person at conception,” the bill’s sponsor, state Rep. Terri Collins (R) said, explaining “what I’m trying to do here is get this case in front of the Supreme Court so Roe v. Wade can be overturned.”

If the Trump judges break their good faith reassurances and Collins’ plan doesn’t backfire, the overturning of Roe v. Wade would in all likelihood send abortion regulation back to the states — at least temporarily. First, a patchwork of different reproductive restrictions would emerge, since seven states and counting have strict “trigger laws” that would automatically ban abortion in the case of Roe being overturned. Other states would undoubtedly pass their own bans or partial bans. Meanwhile, certain blue states have already bolstered their laws in anticipation of Roe being overturned, including New York, which specified this January that people who become pregnant have “the fundamental right to choose to carry the pregnancy to term, to give birth to a child, or to have an abortion.”

There’s no reason to think this kind of language could protect us long term, yet many still seem to think conservatives will stop after the decision returns to the states. Megan McArdle, an “uneasily pro-choice” libertarian columnist for The Washington Post, wrote last summer that “returning the matter to the states would give most people a law they can live with.” Robin Marty, an abortion rights activist, envisioned in Politico earlier this year a nation in which “the privileged and well-connected would still be able to … catch a plane to Chicago or New York City” for an abortion. But overturning Roe does something even more dangerous than impose restrictions on people in conservative pockets of the country: It opens the doors to Congress writing legislation that could ban abortions at a federal level.

Right now, Roe v. Wade is the only thing protecting the right to an abortion. If that constitutional right is taken away, we are at once vulnerable to what The Washington Posts calls the creation of a federal “pro-birth rule” that would “[declare] a fetus a person from the moment of conception, with all of the attendant consequences, intended and unintended.” This is what conservatives have wanted all along: Former Arkansas Gov. Mike Huckabee argued in 2015 that an abortion ban ought to be enshrined in the Constitution; Sen. Ted Cruz (R-Texas) said in 2016 that “human life is a precious gift from God and should be protected in law from conception until natural death”; while Vice President Mike Pence assured last year that legal abortion will end “in our time.”

A federal abortion ban is no longer that outlandish of a possibility. If Roe is overturned, Republicans would just need to push a sweeping abortion ban through Congress, have it signed into law by the president, and then have it survive any court challenges. Considering the party was in control of all three branches of government just last year, this outcome can hardly be hand-waved away. “Our agenda is very focused on the executive branch, the coming election, and the courts,” Marjorie Dannenfelser, the president of the anti-abortion organization Susan B. Anthony List, told NPR in January.

Such a reality would hardly be ahistorical. Back when the Supreme Court first ruled on Roe, the United States had just begun to shake off the cobwebs of a century of abortion bans in every state. By the late 1960s, individual states first began to relax their laws; in 1967, Colorado became the first state to allow abortion exemptions in cases of rape, incest, and danger to the mother, while Hawaii became the first state in 1970 to allow abortions upon request. It is this return to a pre-Roe world — in which abortion is sweepingly illegal across the country — that should most worry anyone who favors abortion rights.

So rather than just battening down the hatches in their pro-choice oases, abortion rights activists need to start preparing for nationwide battle. Blue state liberals ought to realize that their uneasy security is just another illusion.

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