It is no mere hypothetical to inquire whether States, as soon as the reversal of Roe v Wade is confirmed, start to aggressively go after kinds of contraception.
The state of Louisiana is considering making the criminalised charge of abortion applicable to when life starts, and then define when life starts as fertilisation.
That would head towards making criminal for murder those who had IUD’s implanted, or other devices, or Morning After Pill, which may reverse very, very early stage gestation. That is, heading towards the criminalisation of contraception itself.
As this useful interview with the Attorney General of Mississippi points out, such states who seek to ban most types and gestation periods of the foetus will need to double down on resources put into making it easier for babies born to be adopted, and for those babies who are not then adopted to go to a much stronger foster care system. Mississippi is the state that brought the case to the Supreme Court this time.
Further myriad moral landmines then roll over the countryside.
The chipping-away of the power of the Roe precedent has occurred for decades. In the July 3 1989 judgement the United States Supreme Court announced a decision that delegated responsibility for regulating the availability of abortions to the discretion of individual states.
This decision was the result in significant respects of the success of the Reagan regime in appointing a series of like-minded conservative judges to the Supreme Court. The appointment of those judges including O’Connor and Scalia to contest a past liberalism of the Supreme Court, is just one instance that has got us to this (likely) much stronger judgement. It’s taken 23 years – particularly Trump’s 3 S.C. appointments – and the United States Supreme Court now has stronger conservative majorities for stronger conservative judgements.
It is not the case that the United States will henceforth fracture into a series of barely connected states divided by high walls of moral and legal force. The United States is far more deeply integrated than ever over the last 50 years; by motorway, cheap airline, multiple networks of social media, by common real-time information, by more dominant mainstream media, by Zoom, by far greater concentration of corporate power, by ever-tighter ideological scope in its politics, and of course by greater connection in health insurance policy by Obamacare.
Nor is it necessarily the case as phrased by Pete Buttigieg that the United States is at a “high water mark” of the liberal expansion of freedom in its permissive forms. It’s now easier to frame the United States as becoming more of an outlier in global abortion policy than a leader.
Nor indeed that there will necessarily be a great liberal revival as a consequence. Both Me Too and Black Lives Matter are now barely registering ideological blips with only marginal impact on just one of the mainstream parties.
What will start to occur however is a far greater legal and criminal distinction between how states treat abortion.
Once the decision is confirmed, between 23 and 26 states have legislation on the books that is ‘triggered’ to come into effect as soon as possible.
The Guardian and Politico have slightly different takes on the immediate consequences for states.
Mitch McConnell is very clear that the next step is to ban abortion across the entire United States at a Federal level and is also clear that goal is achievable.
That means, probably, see if they get a supermajority in the November mid-terms to roll over any opposition from the Presidency. Then see off the remaining opposition in the Supreme Court. That’s a very real extension to this current rollback.
Until such a nationwide ban is achieved, abortion-supportive states may get into conflict with abortion-restrictive states if they are seen to aid and abet otherwise criminalised activity crossing their borders.
No one yet knows where this will end, but the direction is clear.
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