This long piece in The Washington Post describing the next round of anti-abortion legal battles is a bit all over the map, but that’s mostly because the legal landscape itself is an absolute clusterf--k right now, and not likely to get better. The Post focuses on two particular legal battles:
- One, Republican states intend to follow up their new abortion bans with laws that make it illegal to mail abortion-inducing drugs into their states, regardless of FDA approval or a physician’s prescription.
- Two, Republican states are looking to block the possibly pregnant from traveling to states where they are still able to obtain abortions.
That’s right. We are very near a point where anyone with a uterus, or anyone suspected of possibly having one, might have their American right to cross state lines stripped from them. That’s a hell of a thing to wrap your mind around, if you are not an absolute bloody fascist who gets off on those scenarios, and one might imagine it’s going to take everyone else a bit of time to even wrestle with the notion that it might really be in our future.
The problem with most of the coverage, and the reason the Post and other outlets have to write their stories in such twisted fashion, is that up until recently, both possibilities were, from a legal standpoint, completely outlandish. It would have been absolutely farcical to suggest, from a legal standpoint, that new dystopian governments were going to imprison pregnant Americans in their own states to ensure baby-making compliance. The courts would never tolerate such a thing! It would be such an outlandishly anti-American notion as to be mocked as fantasy, and still is – even as Republican anti-abortion zealots and lawmakers write up the newly proposed laws.
The Post could have saved many paragraphs with a more straightforward admission: There’s no way to tell what the laws are going to be a year from now, because there’s no framework of “law” that the current Supreme Court won’t simply take a hacksaw to in order to get the sectarian verdicts they want to see. It sincerely does not matter what current precedents might exist.
What does the conservative wing of the Supreme Court want the outcome to be? A ban on abortions. What civil rights stand in the way of that ban? Doesn’t matter. They’re gone now.
The Biden administration — which has been trying to sell itself as being caught flat-footed by the Alito ruling that was infamously leaked long in advance because “caught flat-footed” is still a better story to tell than “moving with no particular sense of urgency” — is vowing to protect the right of Republican-state residents to receive abortion medication through the federal mail because federal mail is federal mail, under federal jurisdiction. There is a lot of back-and-forth about whether this is a viable legal framework, but it’s difficult to see this Supreme Court doing anything but laughing off such theories of federal power.
The Supreme Court has announced that medical care can be denied due to the personal religious beliefs of Sam Alito, et al. Republican states are criminalizing medical care under the simple legal theory of because we can. The state-sponsored abortion restrictions that led us to this point, with rule after rule after rule so restricting the medical providers of abortion procedures that abortion was de facto banned in much of the country long before the current Supreme Court made it possible for states to formalize those bans, were all premised on state abilities to impose rules on medical providers meant to ensure the medical “safety” of patients.
The Supreme Court is likely to uphold state criminalization of this form of interstate commerce without so much as a written decision. The shadow docket will be sufficient. Just how such bans will be enforced, given that actually raiding federal post offices is not likely to go over well, remains an open question – but anyone who receives such medication can expect to be prosecuted, and it’s likely that the digital record of ordering that medication will be all that is required for those prosecutions to happen, and it’s likely that the companies shipping those medications will be targeted by state attorney generals en masse.
Medication-based abortions are going to be unavailable in every state with an abortion ban. You can kiss that method of resistance goodbye right now, unless you’ve got an out-of-state friend or relative willing to smuggle it across state lines at their own risk.
The right of interstate travel seems far more fundamental, with an emphasis on seems, and the vision of law enforcement checkpoints at state lines is still being laughed off by those who do not understand that Republicanism is — say it with me again — sincerely a fascist movement. The notion of women, children, or anyone else being forcibly imprisoned in their own state if they are suspected of being pregnant is absurdist; surely, surely even a virulently anti-federal-government, pro-theocracy Supreme Court would never allow such a thing.
Let me ask this, then. Did women have an unfettered right to travel, in the 17th century? They did not. You can expect Samuel Alito to ignore whatever parts of the Constitution and whatever other law has derived from it in favor of a short snippet explaining the circumstances under which English women could legally be imprisoned in church bell-towers, back in the 1600s, based on the personal writings of an especially distinguished witch hunter who maintained a 20-year grudge against a particular woman who once replied too curtly to his advances.
The Post again mentions the concurring anti-Roe opinion of Justice Beer Kavanaugh to suggest that the right of interstate travel is likely to be better protected than abortion rights are, but Kavanaugh was forced to put that note in a separate concurrence because he couldn’t get his court colleagues to put it in the actual decision. Kavanaugh is expressing an outlier take, suggesting that maybe the Court wouldn’t really imprison pregnant people in their home states until they had either given birth or died. He most pointedly didn’t get Alito's agreement on that particular theory.
It is perhaps not likely that Republican states will force residents to take pregnancy tests at newly set up border checkpoints, if they wish to leave the state, but that is only because there are more efficient ways of policing citizens that will better allow connected Republicans to continue having as many “recreational abortions” as they want to while still criminalizing care for everyone else. Missouri already attempted a bill modeled on the Texas “bounty hunter” abortion law. It wouldn’t close the borders to the possibly pregnant. It would impose “civil liability” on anyone who helped a pregnant Missourian travel out of state for an abortion.
That’s the more likely scenario we’ll see. No border checkpoints, but vigilante enforcement regimes in which anti-abortion zealots and profit-seeking allies comb through purchased smartphone-tracking data sets to determine who, in the state, had recently traveled to another and who, among those, were at some point in the immediate vicinity of an abortion clinic. From there only a bit of legwork is necessary to file a suit demanding money from whoever might be involved; for laws truly modeled on the Texas bounty-hunter version, you don’t even need to do much legwork. There’s no penalty for falsely accusing whomever you want to accuse. Want to claim your Republican governor has been driving buses to out-of-state abortion clinics during days off? Go for it. The worst that can happen is nothing.
All this talk of the legal uncertainties is, for the most part, wheel-spinning. We can argue all we want about what the legal outcomes would have been back in the days when the Supreme Court wrote precedents and lower courts interpreted those precedents so that the general body of U.S. law would remain consistent and generally knowable—but these are not those days. The Supreme Court readily rolls over even the most recent of its own precedents in order to arrive at whatever outcome the conservative majority prefers; lower courts that attempt to use new or old Supreme Court precedents in their own decisions are told, via substanceless shadow docket orders, that Actually, the reverse applies, for unspecified reasons, when their outcomes have not favored the conservative stance. We live in a time of pseudo-legal gibberish written by Fox News addicts who make little effort to even get basic facts right before upending another set of civil rights in service to the church in Sam Alito’s head.
It doesn't matter what rights citizens had six months ago. That was then, this is now, and the Supreme Court justice who wrote up the odious opinion announcing that one religious sect’s beliefs would now result in the criminalization of all contrary religious beliefs is mocking his detractors to international audiences. You can be absolutely assured that the current Supreme Court will rule that states can restrict the travel rights of the possibly pregnant or can imprison them if they are discovered to have obtained an abortion elsewhere. The whole premise of the Dobbs ruling was that the state had an interest in prioritizing the “life” of fetuses over their citizen hosts, an interest that could trump whatever rights of the citizenry would normally apply.
This will happen. All the arguments are merely over when.
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