(Looking for factual answers here, so I am posting to GQ)
Assume that the Supreme Court goes nuclear on Roe v. Wade - reversing the original decision (or is vacating the correct term?) instead of chipping away at the edges as they have been doing for decades. Is it correct to say that this will not make abortion illegal nationally, but that it will allow individual states to ban abortion to the extent that they see fit? Any anti-abortion statutes still on the books become enforceable again? I assume that just because a law is ruled unconstitutional it is not automatically repealed or otherwise stricken (anti-miscegenation laws in Alabama weren’t repealed until a referendum in 2000, although a frightening 41% voted against repeal)?
How many states still have abortion bans? Should the pro-choice majority seek to preemptively get those laws repealed? Or have they done so already?
I doubt if you can get a factual answer. There are too many variables, and it largely depends on the case(s) SCOTUS will get to adjudicate. The Supremes don’t go out looking for cases, they are brought to them by others, which adds another uncertainty.
In general, I would expect blue states to try to carve out an exception if a national law/policy were implemented by whatever means. The tragedy would be if an anti-abortion SCOTUS ruling was national, and didn’t allow for local exceptions, but I’m sure the opposition feels exactly the opposite.
There is no federal law regarding abortion. So yes, it would be a state prerogative.
I guess the next question is, does the federal government have the constitutional right to legislate on women’s health, or is that strictly a state jurisdiction? Still it would imply one side controls the house, senate and presidency.
Regardless, it would be one or two years at least before the law would get overturned and then the states implement their own laws.
Suppose hypothetically that Nevada allows abortion and Utah doesn’t. A Utahan goes to Nevada for an abortion. Could she be prosecuted when she returns to Utah? Could Utah phrase their law in some special way to allow such prosecution, or to otherwise impact the woman’s future rights?
My understanding is that almost all laws prohibiting abortion attach liability to the provider, not the patient. So in your example there would be nothing to try the woman for and the out-of-state provider would not be covered by Utah’s laws.
No. States cannot make things illegal in other states. If I go smoke weed in Colorado, Kansas can’t arrest me for it if I go to Kansas. See Article IV, Section one of the Constitution.
Yeah, I think that everyone covered it. Honestly, it wouldn’t be a whole lot different than it is now. Blue states would still have fairly freely available abortions and red states would close down the one or two providers still left within their borders. The biggest issue would be with insurance coverages, since many don’t cover out of state providers and in many states they would now not have to offer coverage. Basically, if it magically got repealed tomorrow, if you live in a red state, it would get much harder within the next year or so to get an abortion. If you live in a blue state, you wouldn’t even notice.
Yep, but you will be transporting THC back to Kansas. It’s in your system. (just wait, get pulled over and have to do a pee test). It remains in your system for weeks.
As it is, anti-MJ states target pro-states just by noting your license plate and pulling you over.
Yes this an over the top scenario. But things are getting quite crazy on all fronts.
I assume the states are not allowed to make laws making it illegal to cross state lines for certain purposes? (But the feds can, the classic “transporting underage women across state lines for immoral purposes”?)
Ireland IIRC had a law forbidding travel outside Ireland for an abortion.
States are generally permitted to make it illegal for their own residents to cross state lines for certain purposes. They are generally not permitted to enact laws which disrupt interstate commerce.
This may be beyond a GQ answer, but this isn’t true when you consider that a federal abortion bans have been voted on many times in Congress, and will certainly be broadened once Roe v. Wade is overturned. Even this term a post-20-week federal ban got a majority vote in its favor in the Senate.
The overturning would not happen in a vacuum, it would happen specifically because a state has passed a law that wold seem to be contradicting of Roe V Wade. If SCOTUS upholds the law, then that overturns the precedent.
Point is, the states would already have the laws, they just wouldn’t know if they were constitutional until it goes before the court.
They can also make it illegal to transport a minor across state lines for various reasons, and if they choose to recognize the clump of cells as a child with all the rights entailed, then they can restrict the movements of any expecting mothers.
This is why you should hope Trump appoints another strict constitutionalist to the court. A nationwide ban on abortion would almost certainly be unconstitutional, unless it can be justified under the commerce clause, which has been heavily abused by the court in the past to justify federal involvement in areas that should be the jurisdiction of the individual states. Clarence Thomas, Antonin Scalia and Neil Gorsuch have been very skeptical of sweeping interpretations of the Commerce Clause to empower the federal government.
Perhaps after having seen what kind of President they might get sometimes, the left might develop a new respect for Federalism and checking the power of an imperial president and an overweening, incompetent political class in Washington.
You may want to reconsider. While Idaho, Montana, and North Dakota are solid Republican, they all have libertarian streaks in them that would make them wild cards in a Roe v. Wade reversal scenario. Also, in the case of Idaho, four of its MSAs (Boise, Lewiston, Moscow, and Coeur d’ Alene) straddle the borders of states that are unlikely to ban abortion (i.e., Oregon and Washington) so there would be no need to go north.
Too much of this post is beyond what I feel like I can respond to in GQ.
That said, could you explain why you think a strict constructionist jurist that finds that Roe was improperly decided (and thus there is no Constitutional protection for abortion rights) would find that a federal ban on abortion is unconstitutional? What part of the constitution would preclude such a federal ban? And surely you agree that all of the myriad limitations and restrictions at the state level (hospital privileges, ultrasounds, parental notification) could also be imposed by the federal government with the appropriate Congressional and Presidential make-up?
What purposes are those? Not disputing, just asking. Can they prevent you from traveling to another state to do something that is legal in that state, but not your own?
Yes, it’s over the top, and I don’t think the analogy holds. A person who has had an abortion isn’t bringing back anything with her.