We’re all familiar with the American civil war of 1861 to 1865, sometimes called the “War Between the States.” There was the Confederacy in the south, and the Union in the north, and the front lines where the battles were fought between armies of each side.
Fast-forward 120 years, and once again we are facing a possible War Between the States – but this time, the front lines will be each state’s boundaries, and the war will not be fought with armies, but with legislatures and law enforcement.
If the Supreme Court overturns Roe v Wade, as they appear poised to do, they will not simply outlaw abortion across the country, or even put some sort of nationwide restrictions on it. Instead, they will throw it back to the states, where each state can pass their own laws and then enforce those laws.
Imagine a scenario, then, where Kentucky passes a law that bans all abortions, and that imposes criminal penalties on anyone who performs an abortion or that assists a woman in obtaining an abortion.
Imagine also that Illinois passes a law that protects the right to an abortion within the state, including the woman, the person performing the abortion, and anyone that assists the woman in obtaining an abortion.
Once those laws are in place, if a woman from Kentucky travels to Illinois to get an abortion, and is driven there by her husband, what will happen? Will Kentucky law enforcement arrest the woman and her husband when they cross the state line to return home?
Or imagine this: Kentucky state troopers travel to Bloomington to arrest the doctor and nurse that performed the abortion. The Kentucky law does not identify location of jurisdiction; it simply says anyone who assists a woman in obtaining an abortion is criminally liable under Kentucky law.
Will Illinois state troopers then show up to enforce their state’s laws? Will they confront the Kentucky troopers? Will guns be drawn?
Or imagine this scenario, which is already happening in some states: Kentucky’s new law contains civil penalties related to abortions. Perhaps it even includes a bounty, like Texas’s law does.
Will the Kentucky state government sue the doctor in Illinois? Will the Illinois government then step in and attempt to nullify the lawsuit? If a Kentucky resident tries to claim the bounty from the doctor in Illinois, will the Illinois legislature tell everyone in Kentucky to suck it, and date the Kentucky governor and legislature to just try to mess with their state?
Imagine a patchwork of state laws regarding abortion, not divided cleanly into North and South, but more like a checkerboard, with neighboring states passing diametrically opposed laws, and looking to enforce their own laws no matter what their neighbor does.
This is the reality that the Supreme Court may impose on us. This isn’t a few dollars difference in the cost of speeding tickets across state lines; this is one of the most emotional issues of our time – an issue that has led some advocates on one side to kill advocates on the other side. Do we really think that politicians who often were elected due to their stand on abortion will try to find reasonable accommodations in this area of the law?
No, I don’t think so either. I foresee a tsunami of legal and law enforcement battles, and some ugly incidents along with them. It will be the new War Between the States – and this time, neither side will be the victor.
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