If Roe Goes, Our State Will Be Worse Than You Think

Washington Post
By Linda Hirshman
Sunday, September 28, 2008; B01

In the 1980s, when abortion was severely limited in then-West Germany, border guards sometimes required German women returning from foreign trips to undergo vaginal examinations to make sure that they hadn't illegally terminated a pregnancy while they were abroad. According to news stories and other accounts, the guards would stop young women and ask them about drugs, then look for evidence of abortion, such as sanitary pads or nightgowns, in their cars, and eventually force them to undergo a medical examination -- as West German law empowered them to do.

Sounds like a nightmare of a police state, doesn't it? Like something that could never happen in this day and age -- and certainly not in the United States? But depending upon the outcome of this presidential election, it could happen here. This is how.

Republican presidential candidate John McCain opposes abortion, believing that life begins at conception. Imagine that he's elected to the White House and, not long after, one of the aging Supreme Court justices dies or resigns. President McCain appoints a suitably conservative replacement, and a complaisant or cowed Senate confirms the nomination. Then, an ambitious district attorney in Alabama, Delaware or any one of more than a dozen other states with old abortion laws still on the books or a new, untested abortion restriction prosecutes a local clinic for performing the procedure. (Legal scholars pretty much agree that laws from before Roe v. Wade can be revived.) The clinic goes to federal court; after appeals, the case goes to the Supreme Court, which votes 5-4 to overturn Roe. And we're back to the '60s .

Well, that wouldn't be so bad, you may think. Some states (or even cities and counties) will offer abortion, and others won't. Women will just have to go to New York or someplace else if they want or need to end a pregnancy. A lot of states had pretty liberal laws in 1972, the year before Roe v. Wade. Even Georgia, one of the two states involved in that case, allowed some abortions for the health of the mother.

But it's not 1972. The climate then was one of growing sympathy for women seeking abortion, triggered in part by stories of those who sought one after realizing that their children would be deformed by the anti-morning-sickness drug thalidomide. Social liberalism was rising; religions weren't much engaged in politics. Today, the politics of abortion have changed. In addition to old laws that would spring back up should Roe be reversed, the nonpartisan Guttmacher Institute lists four states -- Louisiana, Missisippi, North and South Dakota -- as having trigger laws explicitly aimed at making abortion criminal upon Roe' s demise, and seven others that have committed to acting to the extent that the court may allow.

The trigger laws are much harsher than the pre- Roe laws; Louisiana's, for instance, would allow abortion only in case of a threat to the mother's life or to a life-sustaining organ. In 1972, roughly 40 percent of the women who got abortions in the United States did so outside their state of residence. There are now more than a million abortions a year. Can you imagine how many women will travel elsewhere if their home states prohibit abortion unless the mother's life is at risk?

The difference today is that some states with criminal abortion laws will almost certainly also forbid their residents to cross state lines to obtain an abortion. Missouri already allows civil litigation against anyone who helps a minor cross state lines to get an abortion without parental consent. Congress was well along to passing a law making it criminal to take a minor from a state requiring parental consent when the Democrats won in 2006 and stopped it.

Is it possible, you ask, that in a post- Roe world, states would be able to pass valid laws stopping women from leaving to obtain an abortion? It seems un-American. But a lot of law professors have looked at this question, and although they're still debating it, many of the best in the business believe that this is something states probably can do. "To speak of the fetus' " home state, and make the home it shares with the mother "a basis" for controlling a woman's ability to get an abortion might "make sense," Columbia law professor Gerald Neuman wrote in 1993 when abortion rights were last in peril.

Under the American constitutional system, a state does have some authority to regulate its citizens' conduct even when they aren't on its territory. The Tenth Amendment and numerous Supreme Court rulings have recognized the broad reach of state sovereignty. In 1792, the Supreme Court approved Virginia's prosecution of a Virginian for stealing a horse from another Virginian, even though the dastardly deed took place entirely in the District of Columbia.

There are, of course, limits to what states can do to stop out-of-state abortions. They have to comply with the restrictions of the federal Constitution, such as the clause saying that no state may deprive any person of life, liberty or property without due process of law. Courts apply this due-process clause to prohibit states from taking "arbitrary" actions. A state's decision to prosecute a woman for an abortion that it holds to be illegal but that was legal where she got it could be seen as arbitrary -- meddling in behavior that's none of its business -- unless that state shows that it has a legitimate interest in the out-of-state act.

In some indirect -- but ominous -- cases, the Supreme Court has shown itself to be open to the idea that a state has an interest in its citizens' behavior wherever it occurs. In 1985, the court allowed Alabama to prosecute an Alabama defendant for his wife's murder, even though he had already been tried and convicted in Georgia, where the actual murder occurred. In 1993, the court recognized the interest of a state that forbids gambling in upholding a federal law prohibiting broadcasters from tempting its citizens with advertisements for out-of-state lotteries.

There is one case in which the Supreme Court indicated that a state's interest in prohibiting abortion isn't great enough to support reach beyond its borders. In 1975, in Bigelow v. Virginia, the court protected a Virginia newspaper's right to publish ads for a New York abortion-referral service. In its opinion, the court said that "neither could Virginia prevent its residents from traveling to New York to obtain those services, or, as the state concedes, prosecute them for going there."

Sound pretty definitive? It's not, though. The free-speech provisions of the Constitution already protect newspapers in these circumstances, so the court didn't need to make the above determination. Its ruling was essentially what lawyers call a dictum -- meaning that it was just kibitzing, and later courts don't have to pay much attention.

Will the Supreme Court allow a state to prohibit abortion travel? In Bigelow, the court was very anxious to protect its new Roe decision. The seven justices who had voted in favor of Roe were the same ones who protected the newspaper in Bigelow. The losing justices in Bigelow were the same two -- William H. Rehnquist and Byron R. White -- who'd dissented in Roe. But their once-losing position would become the majority position today if a president opposed to abortion appointed a fifth anti-abortion justice. It hardly seems likely that this new majority would feel bound by some kibitzing from the Virginia case.

Moreover, a Supreme Court that reversed Roe could also rule more broadly that the fetus is a person under the Fourteenth Amendment. Such a ruling would be the flip side of Roe, making state support of abortion a constitutional offense. There are barriers to using the Constitution affirmatively to stop abortions nationwide, but such an ambitious ruling would surely encourage the anti-abortion states' most restrictive plans and increase the pressure on Congress to pass a national law restricting abortion. Don't forget that even many Democrats voted in favor of the late-term abortion ban.

Even if the Senate, uncharacteristically, refused to confirm a McCain nominee -- or nominees, if he kept sending up names -- leaving the court at eight justices, women's options would probably erode rapidly. It's easy to imagine the anti-abortion states pushing the envelope with once improbably restrictive laws, such as one requiring clinics to be licensed by the state and prohibiting women from getting abortions in unlicensed clinics, either in- or out-of-state.

If a clinic went to federal court to enjoin such a law, the case would eventually reach one of the 13 federal Courts of Appeal, 11 of which are firmly dominated by Republican appointees and would probably produce a decision either refusing to follow Roe or, more likely, making some transparent distinction between Roe and the new case. In a divided Supreme Court, four justices would probably vote to affirm the lower court, and four to reverse, leaving the appeals court's decision standing. This means that the states that fell within the Circuit in question would come under an anti-abortion umbrella allowing anything up to explicit reversal of Roe.

How would state laws forbidding pregnant women to leave be enforced? The Hope Clinic in Granite City, Ill., is just 10 minutes from the Missouri border. Police from the prohibiting state can just take the license plates of local vehicles at the abortion clinics across the state lines and arrest the women when they re-enter the state. Or a traffic stop can produce a search. Tips from pharmacy workers, disapproving parents or disappointed boyfriends can alert the police to arrest the pregnant woman for intent to seek an abortion out of state. The state law may allow interested parties to seek injunctions to stop her from leaving.

It seems a long way from McCain's bold statement that life begins at conception to police cars waiting on an abortion clinic side street in Granite City. But it's not. If the law were to take this post- Roe course, Americans' lives would be determined by their state citizenship in ways unseen since the Civil War. Professional legal scholars have traced the developments step by step. As constitutional scholar Richard Fallon of Harvard said recently, "If Roe were to go, it would not go gently."

linda@gettoworkmanifesto.com

Linda Hirshman, a lawyer and former professor of law and philosophy, is the author, most recently, of "Get to Work: A Manifesto for Women of the World."

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