Editor’s Note: Mary Ziegler is the author of “Abortion and the Law in America: Roe v. Wade to the Present” and the forthcoming book “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.” The views expressed in this commentary are her own. Read more opinion on CNN.
The Supreme Court seems ready to undo Roe v. Wade, the landmark case recognizing the right to choose abortion, in a matter of weeks, and blue as well as red states are already preparing for what might be coming next: a conflict between states seeking to facilitate out-of-state travel for abortion and those trying to shut it down.
Strikingly, however, this brewing interstate war would be something relatively new. What has changed to make interstate conflict a possible new front in the abortion wars, and what does it mean for a post-Roe America?
It is no surprise that early abortion bans passed in the 19th century did not focus on travel. At the time, transportation was slow, dirty and dangerous – in 1876, even the fastest trains took 83 hours to travel between New York and California. And states were almost lockstep in introducing abortion bans, even if they were rarely enforced. There would have been little reason for someone to travel out of state – and travel was much more complicated in any case.
By the 1980s and 1990s, that story had changed dramatically. If the Supreme Court had reversed Roe in 1992, states would have taken dramatically different positions on abortion – raising the possibility of medical tourism – and scholars had already started debating what would happen if a red state tried to punish someone for having an abortion in a blue state.
By then, the anti-abortion movement had developed a clear hierarchy when it came to tactics, with large, relatively wealthy organizations such as the National Right to Life Committee and Americans United for Life setting strategy for state legislatures and lawyers nationwide. These national organizations operated with the belief that a majority of Americans could be convinced to oppose abortion if they understood what it really was and worried that unpopular policies, such as punishing patients, could cost the movement credibility in national elections. Worse, anti-abortion leaders worried that Supreme Court justices feared a backlash and would be less likely to reverse Roe v. Wade if the anti-abortion movement pursued unpopular laws. So national anti-abortion organizations often tried to avoid unnecessary controversy – such as publicly debating the need for exceptions to abortion bans for rape or incest – or championing bans on travel for abortion.
As important, the leading argument for reversing Roe at the time was about restoring democracy and letting each state set its own policy. Anti-abortion leaders argued that if the Supreme Court had not intervened in 1973, each state would have adopted a policy that reflected the views of its voters – and that this state-by-state resolution would have de-escalated conflict about abortion. Reversing Roe, the argument went, would make the abortion debate more peaceful.
In making its case to the Supreme Court last year, Mississippi made the same argument in asking for Roe to be reversed, but the difference is that the terms of the abortion debate have changed – and in ways that make it more likely that red states will try to regulate what happens in blue states (and vice versa).
First, state politics have become far more polarized. In the 1990s, Republicans still struggled in state legislative elections across the South. The anti-abortion movement was just as influential in states like Pennsylvania as in states like Louisiana, and politicians who veered too far to the extremes on abortion could face devastating consequences in a general election.
After 2010, Republicans gained control of Southern state legislatures, which became the de facto home base of the anti-abortion movement. Political competition, such as it is, comes from primary opponents further to the right than it does from general election challenges. That creates incentives for state lawmakers to introduce sweeping abortion bans. Anything less might dampen the support of donors or trigger a primary challenge from the right.
The anti-abortion movement has changed, too. From the beginning, anti-abortion leaders saw their cause as a human rights movement – a fight for a right that deserved protection regardless of what a majority of voters thought. But more recently, much of the movement has focused less on convincing voters to oppose abortion than on strategies that ban abortion regardless of what voters think.
Case in point: the next step for the anti-abortion movement in the conservative Supreme Court. Anti-abortion lawyers have already asked the court to recognize fetal personhood under the 14th Amendment, which would mean that life in the womb would be entitled to equal protection and due process of law. If the court took that position, abortion would be unconstitutional across the country. The more the anti-abortion movement moves away from focusing on popular politics, the more states will feel free to pass increasingly divisive policies.
It’s certainly true that the traditional anti-abortion establishment still worries about public opinion. When Louisiana lawmakers advanced a bill punishing people for having abortions and calling abortion “homicide,” groups such as the Susan B. Anthony List opposed the move. Abortion abolitionists – some of whom advocate nationwide for laws punishing people for having abortions and for limiting or banning IUDs and in vitro fertilization – applauded the Louisiana bill, and Mark Lee Dickson, who popularized a movement of cities banning abortion – the forerunner of Texas’s Senate Bill 8 – suggested that it would make sense to punish women and pregnant people if they continued to have abortions five years after Roe was gone. But larger anti-abortion groups all united in condemning the bill.
But since the 1990s, larger anti-abortion groups have sometimes lost control of what happens in the states. For the decades, grassroots groups had followed the strategy set by national organizations such as Americans United for Life partly because they did not want to sabotage the chances of success in the Supreme Court. But when Brett Kavanaugh and Amy Coney Barrett joined the Supreme Court, state lawmakers saw no reason to hold their fire anymore. If the Supreme Court would inevitably get rid of Roe, and if there were no political costs locally to doing something extreme, state and local politicians saw no reason to heed the advice of anti-abortion leaders in Washington.
All of this makes it far more likely that some red state legislators will pass laws like one recently proposed in Missouri and try to punish doctors from blue states – and perhaps target their own citizens for traveling to seek abortion. That would open a deeply messy new chapter in the abortion wars. It is unclear whether one state can constitutionally stop people from traveling for abortion – this raises difficult questions about the scope of the right to travel and the effect of one state’s actions on commerce in another. It is also unclear how courts will even decide which state’s law to apply.
The Supreme Court, together with conservative commentators, has suggested that reversing Roe might make for a less divisive debate. At a minimum, Justice Samuel Alito’s leaked draft argues that the United States will be better off if legislatures rather than courts are resolving questions about abortion. But states have set themselves up for a bitter battle that will continue well after Roe is gone. And when competing state laws are on the table, the question of how to reconcile conflicts between them will once again land at the Supreme Court. The end of Roe will mean many things, but anyone expecting the conflict to be less polarized has another thing coming.