Law & the Courts

Our Unstable Abortion Regime

Signs at the 2017 March for Life rally in Washington, D.C. (Aaron P. Bernstein/Reuters)
A new AP analysis of women traveling out of state to obtain abortion procedures illustrates how volatile America could become if Roe and Casey fall.

According to a new analysis from the Associated Press, recent state-level pro-life laws and closures of abortion clinics have resulted in thousands of women traveling across state lines to obtain abortion procedures.

“Although abortion opponents say the laws are intended to reduce abortions and not send people to other states, at least 276,000 women terminated their pregnancies outside their home state between 2012 and 2017,” the author notes.

It’s a mistake to assume that the efficacy of a pro-life bill is determined primarily by whether any residents of a state eventually go elsewhere to obtain an abortion. Presumably, the foremost goal of a state law restricting abortion is to decrease the number of abortions in the state, though pro-life lawmakers surely hope to reduce the overall abortion rate nationwide as well. Those lawmakers can do little via legislation to prevent women from traveling to obtain an abortion in another state; that doesn’t render their state legislative efforts ineffectual.

The AP analysis cites no data showing that the abortion rate for state residents remains just as high in the presence of abortion restrictions as it would be without them, probably because no such data exist. Further along in the piece, the author notes both that the U.S. abortion rate has decreased and that the number of women who had out-of-state abortions rose by only half a percentage point over the six-year period studied.

Hardly proof of a catastrophic failure caused by state-level pro-life laws.

Enormously relevant, and entirely unmentioned by the AP article, is the fact that most state laws attempting to regulate abortion never go into effect. Despite the reams of coverage of pro-life bills passed in southern states earlier this year — including heartbeat bills in Georgia, Louisiana, Mississippi, Ohio, Missouri, and Kentucky, along with Alabama’s total abortion ban and several other state limitations on the procedure early in pregnancy — not one of those laws has taken effect.

Instead, obliging judges have blocked the bills or placed them under temporary injunctions, pending review of lawsuits from abortion-rights activist groups such as Planned Parenthood, NARAL, the Center for Reproductive Rights, and the American Civil Liberties Union, all of which habitually sue state governments when they pass restrictions of any kind on abortion.

Even though the 1973 decision in Roe v. Wade allowed states to regulate abortion procedures later in pregnancy — as the court said protecting fetal life becomes a proper interest of the government as that life develops — the companion case Doe v. Bolton effectively rendered state regulations meaningless by requiring that all abortion restrictions contain an exception for “maternal health.”

The court in Doe defined the health exception expansively: “all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient.” As a result, the decisions in Roe and Doe have enabled women to obtain an abortion throughout pregnancy essentially on demand, regardless of what state restrictions are in place.

What’s more, judges interpret the Supreme Court’s more recent, controlling decision in Casey v. Planned Parenthood (1992) to extend almost unassailable access to abortion, applying the legally meaningless “undue burden” standard to find that nearly every form of state regulation is an improper restriction on abortion rights.

As the AP piece eventually explains, women tend to travel out of state to obtain an abortion not primarily because of gestational limitations on abortion but because of clinic closures, some of which have been the result of health-and-safety standards imposed by state health departments — and vigorously opposed by abortion-rights groups — and others of which “result from provider retirements and an overall decline in unplanned pregnancies,” according to AP.

The article concludes with this dire warning: “Advocates say that if the U.S. Supreme Court upholds the latest restrictive laws, it will become more common for women to seek an abortion in another state.”

I’m far less certain than some abortion advocates that the Supreme Court as currently constituted will uphold any of the limitations passed by pro-life legislatures. But someday — whether it’s in three years or three decades — when Roe and Doe and Casey are cast into the dust heap where they belong, states with abortion restrictions will sit uneasily beside states with laws defining abortion at any stage of pregnancy and for any reason as a “fundamental right.”

At that point, disparities between states’ abortion regimes will result in women traveling for abortions, but they will also create a nation driven apart by its incompatible views about the value of unborn human life. The only real solution to an issue as contentious and immune to compromise as abortion would be a federal one. And, in my view, it ought to be a constitutional amendment declaring that no human being, from the moment of conception, can be deprived of life or equal protection without due process of the law.

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