Liberals have been warning for at least a quarter century now that a succession of "conservative" U.S. Presidents would one day mean a "conservative"* Supreme Court, with worrisome consequences for any number of those privileges we think of as "rights." This has, of course, increasingly proved to be true; and now, after over three decades, the continued legality of abortion in the United States is in immediate question. What, I propose to discuss, is likely to happen on this issue? (N.B. Reply however you like, but understand that I don't propose to suggest, or even discuss, what should happen; just what options are available, and the complexity of the political dynamic involved. Okay? Okay!)
Abortion foes have been systematically trying to get Roe v. Wade overturned for that same twenty-five years, and they are persuaded that their time has now arrived: if a Roberts Court does not overturn Roe, there will likely be serious electoral hell to pay for Republicans -- not because their supporters will vote Democrat, natch, but because they'll stay home. Then again, many Republicans, Libertarians, and conservative Democrats who nevertheless support abortion rights have become accustomed to the idea that Roe is settled law...hence if it's overturned, that could also lead to electoral problems for Republicans. In case you're wondering, many GOP officeholders and party bigwigs are concerned about this double bind. (Ditto, in the opposite direction, for conservative Democrats trying to be competitive in heavily anti-abortion states, of course.)
Suppose, anyway, that the status quo finally ends, and Roe is overturned. What is likely to happen next? Only two possibilities, really. Either:
1. Congress stays out of it, and the abortion rights issue gets settled state by state. The most recent polls suggest that the public in some thirty-six states primarily favors some form of abortion rights, with fourteen states primarily opposed; the actual changes in the law would, one assumes, more or less mirror these outcomes (though not exactly, since some state legislatures may go against the polls on this issue, for both state and national -- as well as personal -- reasons). Sanctions will very likely differ from state to state: everything from prosecuting women who abort as murderers, to punishing doctors as abortionists (for murder or otherwise), to some combination of jail time and fines for either or both. With some states still allowing abortion, some folks would clearly go to those states to get abortions...hence, some anti-abortion states would very likely start making it a crime to cross state lines in order to obtain an abortion, so that these women could be prosecuted on their return. Beyond that, at this point abortion foes would turn their energies to swaying the "hold-out" states.
But not so fast, because the other possibility is:
2. Congress steps in to settle the matter, and passes a federal law outlawing abortion throughout the U.S...as abortion foes will clearly feel is their due, once Roe is overturned (and, by the way, as I strongly suspect the current administration would prefer, if not insist upon). If this happens, of course, all bets are off for all fifty states: abortion will be a crime, period, throughout the country, with a single statutory punishment. This would in turn almost certainly lead to widespread illegal abortions -- some safe, some very dangerous, some fatal -- and numerous criminal prosecutions of doctors, women, or both (depending on the form of the statute).
Given the political dynamics involved, the intensity of feeling on all sides, and the virtual impossibility of compromise among advocates (as distinct from politicians), it is extremely difficult to predict which of these things will happen: whether Roe will be overturned or not, and if so whether the issue will be settled federally, or state by state. But so far as I can see these are the options in play, and the outcome is, at this point, anybody's guess.
93 93/93 -- AJ
* I hate to use that word in this context, but can't come up with a better one. Leaving abortion aside, the notion that, say, various enumerated rights in the Constitution's Bill of Rights (in amendments one and four, e.g.) should be ended -- as we're increasingly seeing -- is arguably anything but "conservative"...hence the scare-quotes around that word.