Is it really true that the states will set abortion policy if Roe is overturned?

AP Photo/Jose Luis Magana

The short answer is yes, absolutely — at first. Once there’s no longer a constitutional right to abortion that limits government regulation, the states will be legally empowered to step in and start setting rules. For 50 years, pro-lifers have been keen to make that point to people who are ambivalent about ending Roe. If Roe goes down, it doesn’t mean abortion is banned. It means the states get to decide. Blue states get to do their thing.

My guess is that federalist logic has an expiration date of about five minutes after the opinion in the Dobbs case is issued.

Read Ilya Somin for a longer answer to the question in the headline. So long as Democrats control the White House and/or either chamber of Congress, the states will have free rein on setting their own abortion policies. But what happens when Democrats don’t? It’s plausible that Republicans will enjoy total control of government as soon as 2025. And when they do, pro-lifers will pose a question to them: Why don’t you use the power of the federal government to impose restrictions on abortion on blue states?

After all, a party that claims to believe abortion is grievous shouldn’t be comfortable watching California and New York and Illinois continue to allow tens of thousands of terminations each year. Until now, the GOP has had a good excuse as to why it couldn’t do anything about that: Roe was preventing it. American women in all 50 states, blue and red, had a constitutional right to abortion.

As of next summer, that’s likely to no longer be true. So what will the excuse be for leaving blue states alone once Republicans control the federal government again?

“Federalism”? Please. If the Trump years stand for anything, it’s the idea that conservative civic values should bend as necessary in the pursuit of power. Besides, it’s child’s play to argue that federalism, while important, should yield in the name of pursuing certain higher values and that preventing the killing of defenseless children in the womb is one.

Somin notes that it wouldn’t be difficult to offer a constitutional justification for federal regulation of abortion (although he stresses that he doesn’t support the idea). It’s the same logic as in the notorious Raich case, which found that the Commerce Clause is so broad in its powers that it entitles Congress to regulate marijuana even when it’s not being sold interstate. Merely having a “substantial effect” on interstate commerce is enough. Wouldn’t legal abortion in blue states have a similarly “substantial effect”?

If, as is likely, the interstate abortion market expands in the wake of a Supreme Court decision overruling Roe, Congress could claim that suppression of intrastate abortions is necessary in order to enforce restrictions on those that involve crossing state lines. If abortion is banned in State A, but legal in neighboring State B, that creates an incentive for residents of A to cross into B in order to get abortions – even if the feds enact a ban on such crossing. That ban might be more effectively enforced if abortion were illegal in B as well as A. Thus, the argument would go, Congress has the power to restrict abortion within a state, because doing so can help suppress the interstate market in abortion.

Could a Republican Congress also pressure blue states to roll back laws permitting abortion by conditioning federal funds on doing so?

In addition to trying to directly regulate abortion by using its Commerce Clause powers, Congress could also try to do so indirectly by using its Spending Clause power to condition grants to state governments. For example, it could enact legislation restricting various types of health care grants to state governments unless the latter ban or severely restrict abortion. These kinds of conditional spending restrictions are subject to a number of constraints under current Supreme Court precedent. The amount of money involved cannot be so large as to be “coercive”; the conditions must be sufficiently related to the purpose of the grant; and they have to be clearly stated on the face of the law – not just inferred by the executive branch. The Trump administration ran afoul of all three of these restrictions during its campaign to cut federal funds to “sanctuary cities.”

Somin thinks SCOTUS might ride to the rescue of pro-choicers in cases like these since the conservative majority is skeptical of expansive interpretations of the Commerce Clause and the liberal minority is stridently pro-choice. Put the two together and even a 6-3 Republican Court might end up telling a Republican-controlled federal government to lay off blue states that want to allow abortion on federalist grounds. That’s the legal posture.

But consider the political posture. If Republicans control Congress and the White House, they’ll have no choice but to try to ban abortion in blue states. The political culture of the Trump-era GOP coalition won’t allow them to do otherwise. For committed pro-lifers, it’ll be intolerable for the federal government not to do everything possible to prevent the killing of infants in utero in blue states. For populists, it’ll be intolerable for the federal government not to do everything possible to own the libs, and nothing would own them quite like telling them that they can’t perform abortions even on their home turf. It would be unthinkable for a party dominated by Trump not to use every lever of power available to pursue victory in the ultimate culture war battle.

Especially if abortions start ramping up in blue states after Dobbs. It wouldn’t surprise me if, within five years of Roe being overturned, we have more abortion providers in the United States than we do now. The distribution of those providers will be wildly different since they’ll be banned from most red states, but the demand for abortions among red-state women will generate new supply in blue states. New providers will open their doors, whether to cash in on the demand or because they believe abortion should be easily accessible as a matter of principle or both. Blue states may even further liberalize their abortion laws to allow for terminations later in a woman’s pregnancy, a counterpunch to Roe being overturned.

All of this will antagonize pro-lifers. What good was overturning Roe if abortions became even *more* freely available in America’s major population centers than they are now?

Two things will happen then. First, short-term, pro-lifers will begin pressuring Republicans in Congress to do something about it. And Republicans won’t be free to say no, even on the principled ground of federalism. Populists seeking to signal their ideological purity by taking the maximalist conservative position on every issue will attack the federalists for being weak-willed RINOs who want Gavin Newsom to be free to perform abortions personally in the streets of Sacramento. Sticking with the GOP dogma of the past 50 years, that the states should be free to decide on abortion, will be grounds for a primary challenge.

Long-term, the abortion litmus test for conservative justices will shift. Since Roe was decided, the test was whether a Republican nominee would be willing to overturn that decision and return abortion to majority rule. Post-Dobbs, the test will be whether a nominee is willing to uphold Congress’s power to prevent abortions in blue states or, more aggressively, whether that nominee is willing to find that a fetus in utero is a “life” for purposes of the Fourteenth Amendment, as some conservatives already argue. If the Court produced five votes for that, it would be the flip side of Roe — no baby could be aborted without due process of law, effectively criminalizing abortion coast to coast (without some sort of trial, at least). Such a ruling would also empower Congress to set the rules of abortion due process nationally under Section 5 of the Fourteenth Amendment. The right-wing refrain since the early 70s that the states should have authority over abortion would detonate.

But this is where all of this is going politically, if not necessarily legally. We’ll see whether Somin’s right when, not if, the feds try to block blue states from allowing abortion and SCOTUS gets the case.