This is just a bill, not a law, and it’s being offered in a state whose governor is a Democrat. (Albeit a pro-life Democrat.) So it may never end up on the books. But it’s of a piece with the bill that was introduced recently in Missouri to let private citizens sue anyone who helps a Missouri resident obtain an abortion out of state. Both bills represent breaks with the traditional conservative view of how to regulate abortion.
The post-Roe constitutional vision of America was supposed to involve each of the 50 states setting their own abortion policies, returning the matter to its proper sphere of majority rule. If the Missouri bill passes and stands up in court, though, it would mean that one state can reach into another and attach financial liability to actions that are perfectly legal in that jurisdiction. The post-Roe vision has also traditionally imagined restricting penalties in pro-life states to abortion providers. Pregnant women don’t face liability for seeking out an abortion; it’s the doctors who perform the procedure who are properly within the reach of the law. That vision has persisted so durably that even Texas’s revolutionary law allowing private lawsuits over abortions performed after six weeks is limited to providers. You can’t sue a woman for undergoing an abortion there, only the doctor who made it possible.
Louisiana’s new bill would upend that model and blow way past civil suits as an enforcement mechanism. They imagine criminally charging women who abort.
Which makes me think the “Republican overreach” phase of the post-Roe abortion wars may arrive sooner than we expect. Especially since we’re in the midst of a hot culture war in which GOPers across the map are effectively competing to see who can own the libs the hardest.
Republicans in the Louisiana House advanced a bill Wednesday that would classify abortion as homicide and allow prosecutors to criminally charge patients, with supporters citing a draft opinion leaked this week showing the Supreme Court ready to overturn Roe v. Wade.
The legislation, which passed through a committee on a 7-to-2 vote, goes one step further than other antiabortion bans that have gained momentum in recent years, which focus on punishing abortion providers and others who help facilitate the procedure. Experts say the bill could also restrict in vitro fertilization and emergency contraception because it would grant constitutional rights to a person “from the moment of fertilization.”…
“I know we have a trigger law,” said Brian Gunter, a pastor who helped draft the bill. “It says that abortion providers have to pay a $1000 fine … that is woefully insufficient.”
Efforts are already under way at the federal level to limit abortion nationally if and when Republicans regain total control of government, another way in which the traditional post-Roe federalist vision is headed out the window even before Roe is officially kaput. That doesn’t mean the traditional vision was dishonest in its ambitions, necessarily. It may just mean that the new generation of conservative legal thinkers is … different from earlier ones:
I like and respect a number of conservative legal thinkers trying to reassure us that this won’t go past Roe. But I sense they’re talking about the legal movement as they wish it were, not the legal movement as it is, the one that embraced John Eastman.
— FindACrimeHat (@Popehat) May 5, 2022
One thing to be said about the Louisiana law is that it deals with the technological reality of abortion in 2022 in a way that the traditional view of regulation doesn’t. In the past, restrictions on abortion providers would have sufficed in limiting the practice: When your only option is to visit a clinic and undergo a procedure, making it a crime to perform that procedure is a surefire deterrent. But that’s not how most abortions happen anymore. Last year, 54 percent involved women taking abortifacients like mifepristone, which stops pregnancy, and misoprostol, which flushes the uterus. Given the legal realities of post-Roe America, it’s a cinch that the share of DIY abortions involving medication rather than surgical procedures will go up. Like, way, way up.
It’s a matter of supply and demand. Once clinics in 20 blue states or whatever are asked to cope with demand from the entire national population, there won’t be enough appointments available to accommodate everyone. Clinics could operate 24/7 and they still wouldn’t be able to see every patient who wants an abortion. (And women can’t wait patiently forever, of course, since pregnancy is, ah, time-sensitive.) The obvious alternative is abortifacients. The safest move legally for a woman in a pro-life state who’s seeking to abort will be to travel to a state where it’s still legal, arrange to pick up the pills there, then take them before returning home. The less safe move would be for a provider in a pro-abortion state to mail the pills to that woman at her home, where abortion is banned. It would be, or soon will be, illegal to possess those pills, but how will the local government find out?
The five-day regimen of tablets usually comes in an unassuming envelope, making it hard to police. With the Supreme Court possibly poised to overturn Roe v. Wade, people seeking abortions in the United States will probably flock to these sources, experts say.
“This is just not going to be stoppable,” said Gerald Rosenberg, a law professor emeritus at the University of Chicago law school…
In many cases, enforcing bans on medication abortion could be nearly impossible. States that ban shipments of the drugs do not have the authority to search mail items, said James Campbell, an attorney and expert on postal regulations. If the FDA has approved a medication, he said, mailers can’t face federal legal consequences for sending it out but could run afoul of state regulations.
Providers in blue states are expecting to rely heavily on telehealth appointments to guide women on how to use mifepristone and misoprostol safely. “I’m hoping telemedicine provides a safety valve,” said one about the coming crush of demand. Expect an enormous burst in publicity from the left later this year to raise public awareness about using medication to abort, as apparently many women have no idea about it. (“We get calls every day asking, ‘Are the services real?’”) There are already foreign-based outfits beyond the reach of U.S. extradition law sending abortifacients into states like Texas to facilitate abortions there.
All of which is to say that any state that’s serious about halting abortions will have to consider following Louisiana’s lead. In the post-Roe future, it’s highly likely that the only party to an illegal abortion in a state where the practice is banned will be the woman herself. If you maintain the traditional approach in which women can’t be punished for having abortions, only doctors for providing them, you’ll resign yourself to the fact that abortions in your state will continue at a brisk pace via pills and telemedicine. If instead you escalate the way Louisiana soon might, you’ll resign yourself to having to throw pregnant women in jail, a spectacle that’s unlikely to play well with the 85 percent or so of the country that believes abortion should be legal at *some* point during a pregnancy. No easy policy options for the GOP post-Roe, especially if lesser penalties like fines are “woefully insufficient.”