California to Introduce Amendment to Make Abortion a State Constitutional Right

Rarely do I point you back to one of my posts as predictive of where politics is going but you could do worse today than to read (re-read?) this one from December.

The short version: We’re about to experience a momentous reversal in the debate over legislating abortion. The liberals who have insisted on one federal policy to rule ’em all since 1972 are set to become ardent federalists. And the conservatives who have championed the power of states to set their own rules on abortion will soon endorse one-size-fits-all national diktats.

Liberals will win that debate in the near-term once Roe goes, just because the GOP will have no opportunity to enact federal abortion policies until 2025 at the earliest. Gavin Newsom is getting a jump on the new normal:

NEW: We are proposing an amendment to enshrine the right to choose in the California constitution.

We can’t trust SCOTUS to protect the right to abortion, so we’ll do it ourselves.

Women will remain protected here. https://t.co/WTUpfymLS0

— Gavin Newsom (@GavinNewsom) May 3, 2022

Creating a state right to abortion is the tip of the iceberg. Newsom has previously touted California as a potential “sanctuary” for pregnant women in red states who can’t get an abortion at home. There’s even been talk of the state covering the cost of the trip to make the travel burden easier on those women.

Post-Roe, for the next three years at least, state politics will determine how widely available abortions are and aren’t to that state’s voters. Which means governor’s races could get spicy:

If true, SCOTUS decision will be most acutely felt in GOV races in battleground states like AZ, GA, MI, PA, WI. May not have similar impact at federal level, but each/every state will now get to set its own rules on abortion access. Uncharted territory politically.

— Amy Walter (@amyewalter) May 3, 2022

A traditional conservative argument for overturning Roe is that ceding abortion policy to the judiciary has made the issue more toxic than it should be. Supreme Court confirmations have become life-and-death political struggles. And pro-lifers have been thwarted in their democratic aspirations to set policies favored by majorities in red states, further embittering the debate. The way back towards harmony is to jettison Roe, return power to the states to make their own abortion laws, and let blue and red jurisdictions go their own ways.

I’ve gotta say, though: I’m not sensing much harmony lately around this subject. Ending Roe in the thick of a period of hot culture war seems more likely to further tear the social fabric than to repair it. *If* it were true that all sides accept a federalist solution in which blue states stay in their lane and red states stay in theirs and everyone minds their own business, that might lead to more comity on balance. Instead the early politics of the post-Roe era are a series of state-level policy moves that resemble an arms race, with blue and red states each trying to outwit the other’s efforts to thwart their agendas. Newsom’s overt ambition to make California an abortion mill for the entire country is a glaring example, but there are moves being made in red states too:

One [Missouri] measure sought to allow private citizens to sue anyone who helps a Missouri resident obtain an abortion out of state, while also targeting efforts to provide medication abortion to residents. Another bill would apply Missouri’s abortion laws to abortions obtained out of state by Missouri residents and in other circumstances, including in cases where “sexual intercourse occurred within this state and the child may have been conceived by that act of intercourse.”…

Several states have outlawed telemedicine abortions and sending [abortifacient] pills by mail.

But some, like Texas, have gone further by contemplating how they’ll prosecute providers who seek to send in abortion pills from out of state. Texas last year expanded upon its existing prohibitions on mailing medication abortion pills by classifying the offense as the type of crime that would warrant extradition…

One statehouse Republican sent Citigroup a letter earlier this year demanding that the company end its policy — adopted in reaction to the six-week ban — of covering travel costs for employees seeking abortions out of state.

Blue states are making countermoves against those countermoves, with New York considering legislation to prevent the extradition of abortion providers to other states and Connecticut weighing a bill that would bar state agencies from assisting abortion investigations launched by pro-life states.

The post-Roe legal framework was supposed to be a matter of each state deciding whether abortions can or can’t lawfully be performed by providers within their own borders. Instead it’s shifting already towards whether a state’s residents can or can’t lawfully undergo an abortion anywhere, with pro- and anti-abortion jurisdictions playing legal chess with each other on that point. Abortion “undergrounds” are also springing up in which out-of-state providers remotely instruct women in states where abortion is likely to be banned on how to terminate a pregnancy using the drugs mifepristone and misoprostol. And of course, all of this wrangling will force SCOTUS to issue many more wrenching abortion-themed decisions in the future. Can a state penalize a resident for activity she engages in out of state? Can it compel the extradition of an abortion provider in another state? Can it penalize a local business if it funds travel for abortion?

Does any of this make it sound like the end of Roe means the end of America’s abortion wars?

Then there’s the question of what happens if and when Republicans regain total control of the federal government in 2025. The traditional claim that the point of overruling Roe is to re-empower the states is already headed out the window behind the scenes:

A group of Republican senators has discussed at multiple meetings the possibility of banning abortion at around six weeks, said Sen. James Lankford (Okla.), who was in attendance and said he would support the legislation. Sen. Joni Ernst (R-Iowa) will introduce the legislation in the Senate, according to an antiabortion advocate with knowledge of the discussions who spoke on the condition of anonymity to discuss internal strategy. Ernst did not respond to a request for comment.

One top advocate, Marjorie Dannenfelser, president of the antiabortion group Susan B. Anthony List, has spoken privately with 10 possible Republican presidential contenders, including former president Donald Trump, to talk through national antiabortion strategy. Most of them, she said in an interview, assured her they would be supportive of a national ban and would be eager to make that policy a centerpiece of a presidential campaign.

In an era when one’s chances at the Republican nomination depend on how far one is willing to go in owning the libs, it’s a mortal lock that the populists in the 2024 field will vow to pass federal legislation to limit the ability of states like California to perform abortions. The matter seems frankly tailor-made for someone like Ron DeSeantis, who was happy to abandon the right’s traditional opposition to crony capitalism in order to score a populist point on Disney. Abandoning the right’s traditional belief that abortion policy should be set at the state level would be child’s play by comparison, particularly since the moral case against abortion is so strong. Another traditional right-wing belief, that Congress’s power under the Commerce Clause should be circumscribed, will also go out the window once it comes time to draft federal legislation barring pregnant women from traveling across state lines for abortion.

Any such initiative will require a filibuster-proof Senate majority to pass, which is unlikely even given the rosy outlook for the GOP in 2022 and 2024. Which means if Mitch McConnell hasn’t started thinking yet about the pressure he’s destined to come under from the base to ditch the filibuster sometime very soon, he had better start.

By the way, longer-term, the end of Roe unfortunately won’t even free us from the SCOTUS confirmation wars over abortion. Not only will control of the Court continue to matter greatly in deciding which side wins in the interstate disputes over regulating abortion, some pro-lifers will soon begin to assert a new litmus test for conservative nominees, that they commit to believing there’s a right to life for unborn children in the 14th Amendment. Five votes for that right would make abortion illegal from coast to coast (without due process for the fetus, at least) and would amount to a total inversion of the Roe paradigm, with pro-lifers having now successfully made their issue a province of the judiciary beyond the reach of democratic majorities.

Eventually GOPers will overreach on all of this, going further than many Americans prefer and suffering a backlash at the polls because of it, but probably not before 2025. I bet DeSantis will start talking about a national ban next year, if not sooner.

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