If Roe Goes ...

In If Roe Goes, Our State Will Be Worse Than You Think, in the Sunday Washington Post for Sept. 28, 2008, Linda Hirshman writes of a possible dystopia that may eventuate if John McCain is elected president. She points out, first of all, something we all know already: that any McCain appointee to the Supreme Court will surely tip the scale against the 1973 Roe v. Wade decision that legalized abortion in the U.S.

Some pundits who are not particularly anti-abortion have written that overturning Roe won't be all that bad. They say it may even be a good thing for each state to go through the political process and figure out what it wants to do about abortion. Potentially, many states will leave abortion legal, though perhaps with some restrictions.

But, says Hirshman, that state of affairs would mean that women in banning states who seek abortions would have to cross state lines to get them. This is a far bigger deal than just worrying about how these women could manage abortion travel. For it isn't at all out of the question that abortion-banning states could enforce their laws upon residents who obtain legal abortions out-of-state.

It would start very simply, with the state passing a law forbidding pregnant women to leave the state to seek an abortion that is illegal in the home state. But, once that is done, asks Hirshman,

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.

Isn't there some legal or constitutional rule, though, that would keep states from such draconian law enforcement? Maybe, maybe not. There are Supreme Court decisions and other pronouncements on the books, writes Hirshman, that allow states to prosecute their own citizens for involvement in state-restricted activities that are perfectly legal elsewhere:

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 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.

The Supreme Court, if McCain wins, could go 5-4 in favor of (a) overturning Roe and then (b) upholding abortion-banning states' prosecutions of legal-elsewhere abortions.


Conceptually, however, a Democratic Senate could block any and all McCain nominees that might become complicit in Roe's demise. If, say, the aging liberal John Paul Stevens were to retire or die, and the Senate refused to confirm a McCain-nominated replacement, the court could operate indefinitely with only eight justices. Minus Stevens, the current lineup would be expected to split 4-4 on most abortion cases.

Not a problem? Think again:

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.

Get it? If a liberal justice departs the court during a McCain administration — even if the Senate majority remains staunchly pro-choice — Roe could stay on the books and yet abortions could go back to being legally unavailable, just be virtue of overly restrictive state licensing practices that the federal courts would decline to interfere with. oldstyleliberal thinks that is truly scary; he hopes Justice Stevens lives to be 110.