Reprinted with permission from AlterNet.
Democratic Sen. Elizabeth Warren of Massachusetts hit the nail on the head last night when—after learning that Judge Brett Kavanaugh would be President Donald Trump’s second nominee for the U.S. Supreme Court—she asserted, in an e-mail, “Make no mistake: Brett Kavanaugh was chosen because conservatives are confident that he would overturn Roe v. Wade.” Bingo.
There are many right-to-privacy Supreme Court decisions that the Christian Right would love to see overturned, from 1965’s Griswold v. Connecticut (which struck down a Connecticut law forbidding the sale or use of contraceptives among married couples) to 2003’s Lawrence v. Texas (which declared a Texas sodomy law unconstitutional and was a major victory for gay rights). And with Kavanaugh likely to be confirmed by U.S. Senate, it is quite possible that the High Court will overturn Roe v. Wade—the landmark Supreme Court ruling of 1973 that, in effect, legalized abortion nationwide.
The end of Roe v. Wade would not automatically mean the end of legal abortion throughout the United States; in order for the Christian Right to achieve that goal, the overturning of Roe v. Wade would have to be followed by both houses of Congress—the U.S. Senate and the U.S. House of Representatives—passing a nationwide abortion ban and President Trump signing it into law. Such a federal law would be needed to outlaw abortion in all 50 states, and as it stands now, some states have laws that explicitly protect abortion rights at the state level. Overturning Roe v. Wade would not invalidate those pro-choice state laws.
However, overturning Roe v. Wade would most definitely give individual states the right to outlaw abortion at the state level. And Kavanaugh, a severe social conservative with a “strict constructionist” view of jurisprudence, would likely argue—along with Clarence Thomas, Trump appointee Neil Gorsuch and other social conservatives on the High Court—that Roe v. Wade was wrongly decided because it was a violation of states’ rights and that individual states should be able to decide whether they do or don’t want legal abortion.
So post-Roe v. Wade, it’s entirely possible that one would see abortion outlawed at the state level in Texas, Mississippi, Alabama, Oklahoma, Kansas and Utah while remaining legal in New Jersey, California, Oregon, Massachusetts and Vermont. Some Republican-dominated states, including Louisiana and the Dakotas, have “trigger laws” that would automatically ban abortion statewide if Roe v. Wade were overturned.
The Center for Reproductive Rights has published, on its website, an informative page called “What If Roe Fell?”—which offers a state-by-state analysis of where abortion likely would and wouldn’t be legal if Roe v. Wade were overturned. The Center breaks all 50 states down into three categories: a high risk of abortion being outlawed at the state level post-Roe, a low risk or a medium risk. And some of the swing states in presidential races—such as Pennsylvania and Colorado—fall into the medium risk category.
According to the Center’s post-Roe scenario, legal abortion “appears safe” in 20 states, is likely to be “banned outright” in 22 and faces a medium risk in the others. The end of Roe would likely make abortion a major litmus test for politicians at the state level, and given that the majority of Americans are pro-choice, it isn’t hard to imagine a lot of Republicans being voted out of office in swing states when horror stories over botched back-alley abortions started coming out of Texas, Kansas and Mississippi and voters blamed the GOP.
Pennsylvania, for example, could become a major abortion rights battleground in a post-Roe scenario. Philadelphia is a very Democrat-dominated city—Philly hasn’t had a Republican mayor since Bernard Samuel left office in January 1952, and Republicans are seldom elected to Philly’s city council—and Pittsburgh is very Democratic as well. But the center of Pennsylvania (where Trump benefitted from a high voter turnout in 2016) has a lot more Republicans, and if enough Republicans in Pennsylvania’s state legislature voted to outlaw abortion post-Roe, it’s quite possible that women living in Philly would be seeking abortions in New Jersey.
Or, if abortion were outlawed in Arizona post-Roe but remained legal in California and Nevada, women living in Phoenix or Tucson might be seeking legal abortions in San Diego or Las Vegas—that is, if they had the funds to travel long distances. Low-income women would be hit especially hard by the end of Roe v. Wade, as they would have less money to travel from anti-choice states to pro-choice states. In many Latin American countries where abortion is illegal, it is poorer women who typically die from dangerous back-alley abortions—not unlike the U.S. before Roe v. Wade—while more affluent Mexican, Salvadoran or Guatemalan women seeking abortions can afford the airfare to Havana, Cuba, where abortion is legal.
Post-Roe, pro-choice activists—from Planned Parenthood, NARAL and the National Organization for Women (NOW) to Emily’s List—could do a lot of recruiting at the state level. The end of Roe v. Wade, if it comes about, could seriously galvanize pro-choice voters in individual states, especially if Kavanaugh and other social conservatives on the Supreme Court overturned Griswold v. Connecticut as well and allowed individual states to outlaw birth control.
According to the Pew Research Center, almost seven in ten Americans—69%, to be exact—remain pro-choice and oppose overturning Roe v. Wade. But public opinion matters little to today’s overtly authoritarian Republican Party, which is why President Trump has shown so little humility despite the fact that he lost the popular vote to Democrat Hillary Clinton in 2016. Authoritarians govern by force or coercion, not consensus. And if Roe v. Wade is overturned despite being broadly popular, abortion rights activists will need to be as vocal and proactive as possible at the state level.
Alex Henderson’s work has appeared in the L.A. Weekly, Billboard, Spin, Creem, the Pasadena Weekly and many other publications. Follow him on Twitter @alexvhenderson.