LIKE SCHRÖDINGER’S unlucky cat, Roe vs. Wade is in a quantum state as the United States awaits word from the Supreme Court on a case that could end the constitutional right to abortion. Judges are expected to open that box, in a case challenging Mississippi’s ban on terminating a pregnancy after 15 weeks, by the end of June. But several states are not waiting to see what is revealed. They are moving as if Roe, a 1973 precedent protecting a woman’s freedom to choose to have an abortion, they were already dead.
The reckoning has been brewing for a while. Three years ago, highly restrictive abortion laws were enacted in nine states. The one in Alabama was the most extreme: it banned almost all abortions, beginning at the moment of fertilization. Most of these laws were quickly blocked in the federal courts. The point, though, was to start getting an increasingly conservative Supreme Court to reconsider. Roe.
Texas took a different tack last year with Senate Bill 8, a roughly six-week abortion ban imposed not by the state but through private lawsuits. Despite its incompatibility with Roe, which protects the right to an abortion until approximately the 23rd week of pregnancy, the law was approved by the Supreme Court on September 1 and the number of abortions in Texas plummeted rapidly. The judges held a hearing two months later and, on December 10, issued their ruling: an 8-1 decision that offers a narrow path to challenge the bill’s constitutionality. Though most of the potential defendants were off limits, most said plaintiffs can sue state officials involved in enforcing the bill.
On March 11, a final roadblock closed that road. Following the Supreme Court’s ruling, the Fifth Circuit Court of Appeals refused to allow the case to proceed in trial court. Instead, the Fifth Circuit sent a query to the Texas State Supreme Court: Do these agency heads actually play a role in enforcing Senate Bill 8, making them suitable targets of a lawsuit challenging the law? under Roe? The judges’ answer was no. The architects of the Texas law, derisively dubbed “some geniuses” by Judge Elena Kagan, prevailed in their quest to craft an abortion ban that would stymie a broad legal challenge.
Other states are taking notice. Idaho is about to adopt a ban based on the one in Texas. A lawmaker in Missouri is pushing a provision that uses Texas’ private lawsuit mechanism to prevent women from seeking abortions outside of their state. Anyone who helps a Missourian get an abortion across state lines, from doctors to appointment makers, could be subject to a lawsuit. Another bill in Missouri effectively bans abortions for ectopic pregnancies, non-viable fertilizations outside the womb that are dangerous if left uninterrupted.
These proposals mark a new radical frontier. They join more conventional 15-week bans being considered in Arizona, Florida and West Virginia. The comparatively mild tactics in those states may be designed to test the waters “to see if there is a backlash to less radical measures,” suggests Mary Ziegler of Florida State University School of Law. But yes Roe goes, predicts Ms. Ziegler, no red state can be “content that regulates what happens within its own borders”. ■
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This article appeared in the US section of the print edition under the headline “Mission Abort”.