Surprisingly, however, this brewing interstate war would be something relatively new. What has changed to make interstate conflict a possible new front in the abortion wars, and what does this mean for a post-Roe America?
Not surprisingly, the first abortion bans passed in the 19th century did not focus on travel. Transportation back then was slow, dirty, and dangerous—in 1876, even the fastest trains took 83 hours to travel between New York and California. And states nearly followed suit by introducing abortion bans, though they were rarely enforced. There would have been little reason for anyone to travel out of state – and the trip was much more complicated anyway.
By the 1980s and 1990s, that story had changed dramatically. If the Supreme Court had overturned Roe in 1992, states would have taken radically different positions on abortion — raising the possibility of medical tourism — and scholars had already begun debating what would happen if a state red was trying to punish someone for having an abortion. in a blue state.
By then, the anti-abortion movement had developed a clear hierarchy of tactics, with large, relatively wealthy organizations such as the National Right to Life Committee and Americans United for Life laying out strategy for state legislatures and state legislatures. lawyers across the country. These national organizations operated with the belief that a majority of Americans could be convinced to oppose abortion if they understood what it really was and feared that unpopular policies, such as punishing patients, would damage the credibility of the movement in national elections. Worse still, anti-abortion leaders feared Supreme Court justices feared a backlash and would be less likely to overturn Roe v. Wade if the anti-abortion movement was pursuing unpopular laws. Thus, national anti-abortion organizations have often tried to avoid unnecessary controversy – such as publicly debating the need for exceptions to abortion bans in cases of rape or incest – or defending abortion travel bans.
Equally important, the main argument for reversing Roe at the time was to restore democracy and let each state set its own policy. Anti-abortion leaders have argued that had the Supreme Court not intervened in 1973, each state would have adopted a policy reflecting the views of its constituents — and that this state-by-state resolution would have defused the conflict over abortion. Reversing Roe, the argument goes, would make the abortion debate more peaceful.
Arguing in the Supreme Court last year, Mississippi made the same argument in seeking Roe’s overturn, but the difference is that the terms of the abortion debate have changed — and in ways that make it more likely that red states will try to regulate what happens in blue states (and vice versa).
First, state politics has become much more polarized. In the 1990s, Republicans were still struggling in state legislative elections in the South. The anti-abortion movement was just as influential in states like Pennsylvania as it was in states like Louisiana, and politicians who went too far to extremes on abortion could face devastating consequences in a general election. .
After 2010, Republicans took control of Southern state legislatures, which became the de facto headquarters of the anti-abortion movement. The political competition, such as it is, comes from the main opponents more to the right than from contesting the general elections. This prompts state legislators to introduce sweeping abortion bans. Anything less could weaken donor support or spark a primary challenge from the right.
The anti-abortion movement has also changed. From the start, anti-abortion leaders saw their cause as a human rights movement – a fight for a right that deserved to be protected, regardless of the opinion of the majority of voters. But more recently, much of the movement has focused less on convincing voters to oppose abortion and more on strategies that ban abortion, regardless of what voters think.
Case in point: the next step for the anti-abortion movement in the conservative Supreme Court. Anti-abortion lawyers have already asked the court to recognize the personality of the fetus under the 14th Amendment, which would mean that life in the womb would be entitled to equal protection and due process. If the court took this position, abortion would be unconstitutional nationwide. The further the anti-abortion movement moves away from popular politics, the freer states will feel to adopt increasingly divisive policies.
It is certainly true that the mainstream anti-abortion establishment is still worried about public opinion. When Louisiana lawmakers introduced a bill punishing people for having abortions and calling abortion a “homicide,” groups such as Susan B. Anthony List opposed the move. Abortion abolitionists — some of whom are advocating nationwide for laws punishing people who have abortions and to limit or ban IUDs and in vitro fertilization — applauded Louisiana’s bill, and Mark Lee Dickson, who popularized a movement of cities banning abortion – the precursor to Texas Senate Bill 8 – suggested it would make sense to punish women and pregnant women if they continued to have abortions five years after Roe’s departure. But larger anti-abortion groups have all united in condemning the bill.
But since the 1990s, larger anti-abortion groups have sometimes lost control of what happens in the states. For decades, grassroots groups followed the strategy laid out by national organizations such as Americans United for Life in part because they did not want to sabotage the chances of success on the Supreme Court. But when Brett Kavanaugh and Amy Coney Barrett joined the Supreme Court, state lawmakers saw no more reason to hold their fire. If the Supreme Court inevitably got rid of Roe, and if there was no local political cost to doing something extreme, state and local politicians saw no reason to heed the advice of anti-abortion leaders. in Washington.
All of this makes it much more likely that some red state lawmakers will pass laws like the one recently proposed in Missouri and attempt to punish doctors in blue states — and perhaps target their own citizens for traveling for abortions. It would open a deeply messy new chapter in the abortion wars. It’s unclear whether a state can constitutionally prevent people from traveling for abortions — it raises difficult questions about the scope of the right to travel and the effect of one state’s actions on commerce in another. It’s also unclear how the courts will even decide which state law to apply.
The Supreme Court, as well as conservative commentators, have suggested reversing Roe might make the debate less controversial. At a minimum, Justice Samuel Alito’s leaked draft argues that the United States will be better off if legislatures rather than courts resolve abortion issues. But the States have prepared for an uphill battle that will continue long after Roe is gone. And when competing state laws are on the table, the question of how to reconcile the conflicts between them will again land before the Supreme Court. Roe’s ending will mean a lot, but anyone expecting the conflict to be less polarized has more to come.
Not all news on the site expresses the point of view of the site, but we transmit this news automatically and translate it through programmatic technology on the site and not from a human editor.