Moving on from what Dobbs means for the issue of substantive due process, let’s take a look at what the right to life looks like in America after Dobbs. We’ll look at three issues in this post. First, is abortion illegal or not in America? Second, can the Biden administration trump pro-life state laws through promulgating a rule or executive order? Finally, can blue states undermine red-state pro-life laws through “abortion tourism?”
A. The Battlegrounds of the States
The bottom line is that every state can make its own decision. The states can ban abortion altogether; they can allow abortion until the moment of birth; or they can land somewhere in the middle. Thus, the primary battleground for the right to life is now no longer at the Supreme Court, but in each state legislature. Many red states are either banning abortion altogether (as Alabama has essentially done) or enacting heartbeat bills.
Many State Attorneys General are asking the courts to lift injunctions on laws that are already on the books. Keep in mind that the courts really don’t really erase a law from the books. We commonly say that they “strike down” laws, but that’s really the B-level answer for what they do. Instead, when a lawsuit arises between parties, the courts are charged with determining which law applies and applying it to those parties. Thus, when courts have “struck down” pro-life laws, they haven’t taken them off the books; they’ve simply ordered the States not to enforce them because of Roe. Many State Attorneys General immediately asked the courts to rescind those orders, and the courts have been complying. Thus, many pre-Roe abortion bans are going back into effect.
B. Federal Regulations and Executive Orders
There are some ancillary issues that warrant attention here. First, I would not be surprised if the Biden administration tries to promulgate an administrative rule recodifying Roe and then arguing that state laws to the contrary are preempted. Pro-lifers were discussing this possibility and gearing up for that fight after it looked like Dobbs was going to throw Roe out.
The validity of the Biden administration’s argument would come down to this: because federal law is the “Supreme Law of the Land” under the Constitution, if the federal government issues a rule or order that has the force of law, that preempts any state law to the contrary. In a move that would make Barack Obama proud, Biden might think therefore that he can use his pen and his phone to do what Congress and the states could not.
But fortunately, there would be lots of ways to fight this if he tried. The primary way to fight it would be invoking the “major question doctrine” that the Court has employed three times this term to beat up on Biden’s administrative state. There is no doubt that the Court would view this as a “major question” and would therefore not let it stand without explicit congressional authorization.
Even if the Biden administration could somehow make it past the major question doctrine, there would still be other issues of federalism and separation of powers that we could use to challenge it.
C. Abortion Tourism
The last question for this post is whether “abortion tourism” would be another issue we’ll face. “Abortion tourism” refers to blue states encouraging people to fly to them for the express purpose of getting abortions. In a move that would make even Moloch blush, California has talked about using taxpayer dollars to pay for the flights of people from red states to make the trip.
Could Alabama stop an Alabama citizen from flying to California to get an abortion? That one’s tough. Justice Kavanaugh, off the top of his head, opined that it couldn’t, because doing so would prohibit the constitutional right to travel. Sadly, my initial instinct is to agree with him.
But there may be creative ways to combat this. One thing that might work is create a law prohibiting “attempted abortion,” which would prohibit a person from getting on a plane for the purpose of getting an abortion in another state. The law often views an “attempt” to have occurred when a “substantial step” has been taken towards the commission of the act. Thus, if you can prove that someone was hopping on board a plane, train, or loading up a car for a trip for the express purpose of aborting a child, then the law might be able to prohibit them from doing that, since the object of the law is not prohibiting travel but prohibiting abortion.
A problem with this approach is that the mother would be the target of the government’s actions. Alabama law currently does not criminally prosecute the mother, and I think it would be good to keep it that way. One way to deal with that might be to make the law not criminal but civil, letting a family member who wants to save the baby’s life seek an injunction. Family members might be able to invoke existing dependency statutes in juvenile law in a similar way.
Still, taking any action against the mother would give many pause, so we would have to think hard about that. We would also have to consider the precedent this would set. If Alabama can prohibit one of its citizens from traveling to get an abortion, then can California retaliate by prohibiting its citizens from traveling for the purpose of seeking religious freedom (or other liberties that the Left hates)? Before we knew it, each state could have a legal Berlin Wall in effect if its people wanted to leave for select purposes.
For that reason, I think the best solution is recognizing that the Federal Constitution protects the right to live. More on that on Friday.