January 22, 2006

The Original Abortion Federalism

by PG

Congratulations to Will Baude on his op-ed piece published in the Sunday Times. Representin' for blog-style writing, States of Confusion includes links to the arguments to which he's responding, and he appears to answer them in a reasonably able fashion. However, neither the column nor his dialogue with Quaker dealt with the objection I had to his old post on the same question of what would happen if Roe were overturned and abortion's legality returned to the states for decision. Will fails to describe the relevant history.

Before Roe, state-made abortion regulation was exactly what we had, so we should delve into the 1950s, '60s and early '70s to find out how anti-choice states dealt with women who were found to have gone out of state to obtain abortions. While a student at UT Law, Roe's attorney Sarah Weddington went to Mexico (where abortion was illegal as well) to terminate an unwanted pregnancy. Did she and women like her have to fear arrest upon their return, or did Texas not worry about what immoralities occurred outside its borders? Her autobiography notes the story of Sherri Finkbine, a working mother of four who defied an Arizona court to abort her thalidomide-affected fetus in Sweden.

She also reports, "From mid-1970 through 1972, nearly 350,000 women left their own states to obtain legal abortions in New York, one of the few states where abortion was then legal and available to nonresidents." That distinction, "available to nonresidents," raises the question of whether Congress might pass a DOMA-like act or one more similar to the Fugitive Slave Act than what Will posits: a law that requires states that do permit abortion not to allow citizens not of that state to obtain abortions there.

States may well decree that Life begins at conception, but they are unlikely to begin classifying fetuses as Persons/ Citizens -- or as in Texas, Individuals -- unless their own courts turn on them and find abortion rights in the state constitutions, at which point fetuses become Persons so killing them can be deemed homicide, a violation of the individual's right, instead of just a violation of the state's interest.

Considering that states have not managed to pass laws that ban pregnant women from consuming alcohol, smoking or performing other legal activities that endanger the fetus, a law that banned travel by pregnant women seems unlikely to pass. How would the state find out that she had had an abortion so it could enforce a long-arm statute, without the cooperation of hospitals in other states who would disprove her claim of having had a miscarriage* while traveling? Putting a fetus in custody reveals the part of abortion that most pro-lifers would like to forget, that the woman carrying the fetus is prisoner to whatever measures that are passed in the name of the fetus's protection. Such measures actually might galvanize opposition to abortion regulation, as women publicized how they have been prevented from traveling because they are under suspicion as possible aborters.

I'm not in favor of having abortion devolve to the states. While the pro-choice federalists blithely assume that women will just travel elsewhere and that the only problem will be conflicting state regulations, I'm worried about the women whose burdens already make them feel unable to bring their pregnancy to term. A woman in Mississippi who has many children and little money has enough trouble getting to the single clinic in the state for the required two visits to obtain an abortion; forcing her to go even further strikes me as nearly inhumane.

* A term that some people use interchangeably with abortion. My mother recently horrified me slightly by telling me that someone had had five abortions. My eyes widened: "OK if she doesn't want kids, but why doesn't she use birth control?" It turned out that the person had had five miscarriages, which is pitiable but unlikely to draw criminal charges anywhere.

January 22, 2006 12:44 AM | TrackBack

Baude writes: "It's unlikely that Congress would pass a comprehensive federal ban on or right to abortion."

Oh really? I find that assertion preposterous and wholly indefensible.

He also writes: "States could make it illegal to cross state lines in order to abort a fetus... While the Supreme Court has recognized a constitutional right to travel across state lines, it has also recognized exceptions."

Again, the idea that the Court is not only going to overturn Roe/Casey, but while they're at it rework their entire Article IV Priveleges & Immunities jurisprudence is, quite frankly, ludicrous.

Posted by: KipEsquire at January 22, 2006 10:31 AM

Will explains why he finds it implausible in posts at Crescat; it's basically a political calculation. He think there are insufficient votes on both sides for Congress to pass such a measure. Remember that the 'partial birth' abortion ban passed only because many Congressmen (and I say men advisedly) who support abortion rights were either personally grossed out by the rhetoric about the procedure, or had enough constituents who were. Congress would have to get pushed much more in one direction or the other to collect enough votes for either a total prohibition or total permission on abortion.

Legally, presumably the commerce clause would give Congress jurisdiction over any abortion induced by another person or with a drug sold for that purpose, but it wouldn't be able to cover the "abortion by coathanger or household product" scenario that's a staple of pro-choice rhetoric.

A Supreme Court that invalidates the constitutional right to abortion may be willing to overturn some of the right to travel. Note that Rehnquist dissented in Saenz by calling it the "previously dormant Privileges or Immunities Clause," and Thomas invokes (wait for it) original intent in declaring the majority wrong. Roberts already is being characterized as likely to follow Rehnquist's results-oriented footsteps, so given a Court of Thomas, Roberts, Alito and a couple more originalists (if any such can avoid Borking) and there goes your current right to travel.

Posted by: PG at January 22, 2006 02:57 PM

So perhaps we can expect a "Fugitive Fetus" amendment to the Constitution? I read both Baude's and Salatan's Op-Eds in NYT and putting them together, they confuse the situation. PG provides some of the relevant background that these Op-Eds lack. The possible outcomes they prophecy would be worse than pre-Roe when in some states abortion was a medical decision and not specifically proscribed by state statute.

Posted by: Shag from Brookline at January 22, 2006 03:30 PM

The pre-Roe state of law is some guide, but not, I think a very good one, since serious popularity and pressure for abortion legalization hadn't gotten very far before Roe took over. The right to an abortion is now much much more politically salient-- it is hard to find adverbs strong enough-- than it was pre-Roe, and given the need of various politicians to play to their right or left through abortion politics, I think constitutionally questionable judicial over-reaching is not out of the question. Think of Ireland or Germany.

I confess not to understand what KipEsquire's talking about. Child custody statutes and various forms of arrest and detention for those suspected to be about to commit a crime are already constitutional-- so I'm not hypothesizing a "reworking" of the Court's jurisprudence. There is no clear jurisprudence here.

Posted by: Will Baude at January 22, 2006 04:18 PM

Pre-Roe may not be much guide to post-Roe politics, but it at least tells us what states actually did when abortion was not legal nationwide. That's why I find the prediction of chaos to be disputable (as if there's so much that I find non-disputable ;-) -- because we did seem to manage it before. Or maybe we didn't and it was a crumbling state of affairs that eventually would have led to some nonviolent version of the Civil War. But the history needs to be identified, described and analyzed before we predict the future.

Posted by: PG at January 23, 2006 01:47 PM

I'm with Will on this one: history is not a particularly good predictor of the future, and an analysis of the 1950s (not only before internet pornography, but when "'One Foot on the Floor' was the rule in cinematic lovemaking) is unlikely to lead to much light. I'd go further than Will, though, in saying that no state would ban abortion, or in any event leave it banned for very long after Roe was overturned. In a post-Roe world, politicians would have to defend their law from the actual misery and physical consequences that would result from it. That alone should be enough.

Posted by: A. Rickey at January 23, 2006 01:59 PM

Again, did the politicians of the pre-Roe era have to defend themselves from the actual misery and physical consequences that resulted from it? or were the women most affected generally the most marginalized and their misery the most ignorable? Cities in states without legal abortion had entire hospital wards for women who had botched their abortions. Note that the story Weddington remembered was of a TV personality -- a woman who had the money to go abroad and the guts (and probably attorneys) to defy a court order.

Thankfully, there will be many fewer women who will be harmed by anti-choice laws post-Roe than were before the decision, because anti-choice states will be in the minority. The situation of a woman in a Mississippi that has banned abortion can hardly be much worse than the current situation of only one abortion provider in the state and two visits required. Pro-choice organizations will do for women in anti-choice states what they already do for minors, i.e. help them access abortions. I agree that long-arm jurisdiction is implausible, but to the extent that anti-choice states don't have to see more than the poorest women suffering through self-abortions -- a teenager shooting herself in the abdomen hasn't changed Florida's law against post-viability abortions or Medicaid funding, after all -- they can remain smugly morally superior to their abortion providing neighbors. The states most likely to see a politically significant number of tragedies are those with a large number of women in poverty and that are surrounded by other anti-choice states.

Posted by: PG at January 23, 2006 06:39 PM


Again, the comparison with the pre-Roe political situation is misleading. The 24-hour news cycle, the advent of a very strong women's rights movement, and the visibility that distributed media gives to individual events is more than likely enough to change the political calculus.

Posted by: A. Rickey at January 24, 2006 12:27 AM

But I'm not comparing solely with pre-Roe. I also invoked a recent incident where abortion restrictions had some graphically nasty consequences, yet the laws against Medicaid funding for abortion (which is why Kawana Ashley didn't abort early in her pregnancy; she couldn't afford it) and against late-term terminations (which is why she self-aborted) are unchanged. The individual events of women who will suffer from the ban on "partial birth" abortions are deemed insufficient to prevent such laws from being enforced in the absence of SCOTUS intervention. So why are the deaths or injuries of women who are unlikely to be cute middle or upper class white females -- because those women can afford going out of state for an abortion -- suddenly going to become so visible and important?

Posted by: PG at January 24, 2006 12:56 PM

Back in 1957 or 1958, I researched a situation here in Massachusetts involving a Connecticut college student who was pregnant. Her father consulted us on the ability to obtain an abortion in Massachusetts, as there existed a specific prohibition in Connecticut. My research indicated that in Massachusetts there was no specific prohibitive statute at the time and that in Boston, even then a significant medical community, the matter would be addressed medically, including psychiatrically. I was concerned with the matter of perhaps a conspiracy to violate the Connecticut statute but satisfied myself that at least in Massachusetts this would not be a problem. The matter was then attended to in a Boston hospital. Until Roe v. Wade, the matter of abortion was not the hot button issue here in the Boston area, outside of certain religious groups. Roe put the spotlight on abortion and ever since it has remained a hot button issue, with both proponents and opponents seeking a bright line. Sad to say, there remains, to this day, lots of grey.

A postscript to the above tale is that the father contacted us several weeks later and asked if he could submit the expense for the medical procedure to his medical insurer. We responded that prudence suggested he not stretch the situation.

Posted by: Shag from Brookline at January 25, 2006 06:42 AM
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