States of Confusion

William Baude editorialized in NYT It's no longer just anti-abortion advocates who oppose Roe v. Wade. These days, Roe's traditional critics are joined by a surprising and increasing number of people who are pro-choice but willing - in fact, eager - to have the ruling overturned. In an October column titled "Support Choice, Not Roe," The Washington Post's Richard Cohen expressed his fatigue with "having to defend a Supreme Court decision whose reasoning has not held up."

I agree with him. It was a foolish decision, with logic twisted to achieve an end, which requires that all future judges must be chosen to try to protect or reverse that end.

Similarly, Benjamin Wittes in The Atlantic Monthly and Eleanor Clift in Newsweek have argued that abortion-rights supporters should welcome (if not necessarily hasten) the end of Roe. The emergence of this pro-choice anti-Roe movement seems fueled by a hope that if it were left to the states, and not the Supreme Court, to set abortion policy, the result would be a more secure and less acrimonious compromise.

I favor the matter be returned to the states. Some Blue States will probably permit it, but many Red States will forbid or strongly limit it. Population will increase in the Red States, increasing their representation in Congress, and we could see whether God would shower more blessings on the Red States that did not kill His newest creations.

But what would actually happen if Roe were overturned? It's unlikely that Congress would pass a comprehensive federal ban on or right to abortion.

That is why it was so bad for a handful of activist judges to "create" a law that Congress never would have passed (either for or against).

So in the absence of Roe, states would largely be free to regulate the issue as they saw fit. Some states would permit abortion on demand, while some would ban it; many would fall somewhere in between. A patchwork of state abortion regulations, however, will lead not to compromise, but chaos.

I am surprised that a second year law student at Yale would be so ignorant of the law that he would think that.

The common refrain in the anti-Roe pro-choice camp is that women in anti-abortion states will simply travel elsewhere to end their pregnancies. But it's unlikely that states with strict regulations on abortion would stand idle, and they will have many legal tools at their disposal. States could make it illegal to cross state lines in order to abort a fetus - a tactic Ireland tried in the early 1990's, until a court decision and subsequent constitutional amendment recognized a right to travel.

Ireland did not have a Commerce Clause to contend with.

While the Supreme Court has recognized a constitutional right to travel across state lines, it has also recognized exceptions.

The only ones I can think of apply to criminals, and they do not forbid travel, they merely say that traveling across state lines allows federal law to apply, but we just agreed that federal laws would not be made either for or against abortion.

If states can decree that life begins at conception, they might also be able to use child custody laws to curtail the movements of pregnant women. For example, many states are legally allowed to hold children in protective custody if there is reason to believe the parents will misbehave. Once Roe has been overturned, a state may be able to place unborn children into protective custody, forbidding their mothers to take them across state lines.

Extremely unlikely, and certain to be reversed by the court.

Furthermore, in recent decades, the Supreme Court has ruled that a state can regulate its citizens' activities while they are elsewhere and prosecute them for violations of state law upon their return. This so-called long-arm jurisdiction has been invoked to allow states to regulate Internet sites based beyond their borders, or to prosecute murders that followed interstate kidnappings. Anti-abortion states could forbid their residents to obtain or perform abortions, even while out of state. Would such measures be legal? The current law is unclear.

Only to a second year law student.

Abortion-rights states would undoubtedly respond in kind. For example, Rhode Island, where 63 percent of residents favor abortion rights, has rebuffed efforts at regulation in the past. Just as Utah could make it a crime for a resident to go to Rhode Island for an abortion, Rhode Island could forbid Utah's law-enforcement officials from interfering with her decision to get one. Similarly, if an anti-abortion state places a fetus in protective custody, an abortion-rights state might do the same for the woman. And so on.

Sheer paranoid foolishness.

Without Roe, the federal courts would be flooded with such disputes. Abortion cases, now further encumbered by issues of family rights and the powers of states to regulate trade across state lines, would once again end up before the Supreme Court. And though a doctrine called "conflict of laws" exists to settle legal disagreements between jurisdictions, this kind of interstate regulatory warfare has been mercifully rare in our nation's history. The precedents are muddy, the standards unclear, and so it is almost impossible to know how a future Supreme Court would resolve the matter.

Indeed, American democracy has rarely resolved moral battles of this scope at the state level. The most significant moral conflict ever devolved to the states, after all, was slavery. The problem of escaped slaves made it necessary to include a Fugitive Slave Clause in the Constitution, but it was impossible to contain the moral controversy within state borders. Disagreements over how to determine who was a fugitive slave, how to regulate slavery in the territories, and how to maintain the balance of power between South and North meant that slavery would inevitably become a federal issue. "A house divided" could not stand.

Overturning Roe and leaving the states to regulate abortion will not be the compromise that ends the debate. Rather, it will worsen it.

Did ANY of the things you worry about exist before Roe (when it was a state decision)? Or is the fact that Roe permitted the birth of a large Abortion Industry, where organizations like Planned Parenthood ceased to be what their names imply, and just became organizations to provide and promote abortions.

Pro-choice and pro-life states will not enjoy an easy and untroubled coexistence, as some would like to believe. Nor will overturning Roe get the federal government, or the federal courts, out of the business of abortion jurisprudence. Instead, state regulation will make a complex legal matter even more complicated, and the divisions over abortion that much wider. If Roe is reversed, the ensuing chaos will demand a federal resolution to the abortion battle - again.