Remarkably, however, this war brewing between nations would be something relatively new. What has changed to make interstate conflict a potential new front in the abortion wars, and what does that mean for post-Ro America?
Not surprisingly, the ban on early abortion enacted in the 19th century did not focus on travel. At the time, transportation was slow, sloppy, and dangerous—in 1876, the fastest trains took 83 hours to travel between New York and California. And states have been nearly in full swing in imposing a ban on abortion, even if it is rarely enforced. There would be no good reason for someone to travel out of state – and travel was much more complicated anyway.
By the ’80s and ’90s, that story had changed dramatically. If the Supreme Court had overturned the Roe case in 1992, states would have taken vastly different positions on abortion – increasing the potential for medical tourism – and scholars would have already begun to discuss what would happen if a red state tried to punish someone for having an abortion. . in blue case.
By then, the anti-abortion movement had developed a clear hierarchy when it came to tactics, with large, relatively wealthy organizations such as the National Right to Life Committee and Americans United for Life devising a strategy for state legislatures and attorneys nationwide. These national organizations operated with the belief that a majority of Americans could be persuaded to oppose abortion if they understood what it really was and worried that unpopular policies, such as punishing the sick, could cost the movement’s credibility in national elections. Worse, anti-abortion leaders worry that Supreme Court justices fear a backlash and will be less likely to reverse Roe v. Wade if the anti-abortion movement follows unpopular laws. So national anti-abortion organizations have often tried to avoid unnecessary debate – such as publicly discussing the need for exceptions to abortion bans for rape or incest – or championing abortion travel bans.
Equally important, the main argument for reversing Roe at the time revolved around restoring democracy and allowing each country to set its own policy. Anti-abortion leaders argued that if the Supreme Court had not intervened in 1973, each state would have adopted a policy that reflected the views of its constituents—and that each state’s decision would have lessened the conflict over abortion. The argument went the opposite of Roe, which would make the abortion debate more peaceful.
In presenting its case to the Supreme Court last year, Mississippi made the same argument in Roe’s reverse order, but the difference is that the terms for discussing abortion have changed — and in ways that make it more likely that red states will try to regulate what happens in blue cases (and vice versa).
First, the country’s politics have become much more polarized. In the 1990s, Republicans were still struggling in state legislative elections across the South. The anti-abortion movement has been as influential in states like Pennsylvania as it is in states like Louisiana, and politicians who have veered to extremes about abortion could face dire consequences in the general election.
After 2010, Republicans took control of the southern state legislatures, which de facto became the main base of the anti-abortion movement. Political competition, as it is, comes more from the main opponents to the right than it does from the challenges of the general election. This creates incentives for state lawmakers to impose a blanket ban on abortion. Anything less could discourage donor support or raise a fundamental 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 struggle for a right worth protecting no matter what the majority of voters thought. But lately, much of the movement has focused less on convincing voters to oppose abortion than on strategies that ban abortion no matter what voters think.
Case in point: The next step for the anti-abortion movement is on the conservative Supreme Court. Anti-abortion lawyers have asked the court to recognize the identity of the fetus under the Fourteenth Amendment, which means that life in the womb deserves equal protection and due process. If the court took this position, abortion would be unconstitutional across the country. The more the anti-abortion movement moves away from a focus on popular politics, the more free states will feel free to pass policies that further divide.
To be sure, the traditional anti-abortion establishment remains concerned about public opinion. When Louisiana lawmakers introduced a bill to penalize people for having abortions and label abortion as “murder,” groups like the Susan B. Anthony move. Abortion advocates — some of whom advocate laws that penalize people for having abortions and restrict or ban the use of IUDs and in vitro fertilization — have hailed the Louisiana bill, and Mark Lee Dixon, who popularized the cities movement banning abortion — is pioneering. From Texas Senate Act No. 8 – suggested that it would make sense to punish women and pregnant women if they continued to have abortions five years after Roe’s departure. But the larger anti-abortion groups were united in condemning the law.
But since the 1990s, larger anti-abortion groups have at times lost control of what happens in the states. For decades, grassroots groups have followed the strategy laid out by national organizations like Americans United for Life in part because they don’t want to sabotage the chances of success on the Supreme Court. But when Brett Kavanaugh and Amy Connie Barrett joined the Supreme Court, state lawmakers found no reason to stop the shooting anymore. If the Supreme Court were to inevitably get rid of Roe, and if there were no domestic political costs for doing something extreme, local and state politicians saw no reason to heed the advice of anti-abortion leaders in Washington.
All of this raises the possibility that some red state legislators will pass laws like the recently proposed law in Missouri and try to punish doctors from blue states — possibly targeting their own citizens for traveling to seek abortions. That would open a very chaotic new chapter in the abortion wars. It’s unclear whether a country can constitutionally prevent people from traveling for an abortion – and this raises difficult questions about the scope of the right to travel and the impact of one country’s actions on trade in another. It is also unclear how the courts will decide even which state law should apply.
The Supreme Court, along with conservative commentators, have suggested that reversing Roe’s case might lead to a less divisive debate. At a minimum, Justice Samuel Alito’s leaked draft argues that the United States would be in a better position if legislative bodies rather than courts resolved abortion-related issues. But countries have prepared themselves for a bitter battle that will continue after Roe’s departure. And when the laws of competing states are on the table, the question of how to reconcile their disputes will again be brought to the Supreme Court. The end of Rowe will mean many things, but anyone who expects the conflict to be less polarizing will come up with something else.