If you’ve been following the news surrounding reproductive rights recently, you’d be forgiven for asking yourself whether we’re living in a world where Roe v. Wade was never decided. In 1973, the Supreme Court ruled that states cannot make abortion illegal before viability – back then this meant about 28 weeks into pregnancy, now it’s about 24 weeks. And yet, in March, Mississippi passed a law banning abortion after 15 weeks. Last week, Iowa one-upped the Magnolia State, passing a law banning abortion after just six weeks. And South Carolina nearly topped both of them, coming close to passing a law banning all abortions except in the case of life threat, rape or incest. The only thing that stopped that law was a rarely successful Democratic filibuster that pushed the legislature too close to the end of its calendar. In other words, if the law had been considered earlier in the year, the state could have banned almost all abortions.
It doesn’t take a law professor to comprehend the legal problem here.
So what’s going on? Why are these states spending valuable time and resources passing clearly unconstitutional laws?
There are two main reasons these states are willfully violating the Constitution. First, there’s the simple messaging aspect. By passing these laws, the legislators who vote for them and the governors who sign them are signaling to their constituents that they are not merely a little against abortion, but are in fact extremely against abortion. They are making the naked political calculation that being extremist on this issue is a winning strategy in future elections.
That may sound crass, because, after all, couldn’t they be doing this simply because they want to stop abortion? Well, that’s certainly how they talk about their actions, but in reality, not a single person is under any illusion that these laws are going to prevent future abortions. These measures will be immediately challenged in court, and they will be found unconstitutional. And with such extreme laws, the personal politics of the judges hearing these challenges are irrelevant. They will be bound by the clear precedent of Roe, no matter how much they disagree with the decision. In other words, there shouldn’t be a single person voting for or signing these laws who believes they will stop any abortions.
That is, until these laws get to the Supreme Court. The thinking here is that by passing these measures, states like Mississippi and Iowa are forcing the issue to continue to bubble up to the courts – up to and including the Supreme Court. The logic is that, maybe the next time a given abortion case reaches the Supreme Court, new justices will have joined the bench, specifically ones who are willing to overturn Roe.
There’s nothing at all new going on here. This has been part of the anti-abortion strategy ever since Roe was decided. Again, the game is simple: Pass anti-abortion laws to keep cases in the courts while electing conservative presidents who will appoint anti-abortion justices. So far, this strategy hasn’t resulted in overturning Roe, but it has come close, and it has successfully chipped away at the abortion right, even if not getting rid of it altogether.
But what’s different with the recent state-level abortion laws is that there’s absolutely no wiggle room for lower court judges – or even Supreme Court justices who might not like Roe but do not wish to see it overturned. Requirements that women must wait 24 hours before getting an abortion, or that minors tell their parents about their decision, or that doctors tell patients about risks that aren’t supported by medical evidence – those types of restrictions are extremely burdensome for women but have been generally upheld by the courts because the justices have said they still allow a woman to eventually obtain an abortion.
But these new extreme bans in Mississippi and Iowa don’t do that. These measures are wholly unconstitutional if Roe is still nationwide law, which it is. So the end result is this: politicians express their anti-abortion bona fides and hope for lightning to strike in all of the political forces coming together at the right time to overturn Roe while sending hundreds of thousands – even millions – of taxpayer dollars to abortion rights groups.
Yes, this is the real practical effect of these laws – conservative anti-abortion states funneling gobs of money to nonprofits whose sole mission is to keep abortion legal. How does that happen? Because the lawyers that work for these groups will immediately sue to block these laws in federal court. And under long-standing precedent that applies to all civil rights cases – not just abortion cases – when lawyers sue to block an unconstitutional law and win, the state has to pay the fees of the attorneys who brought the lawsuit, and when the lawyers work for abortion rights groups, those groups get the money.
Thus, as a result of this law, Texas faced a $4.5M bill after it shut down three-quarters of the state’s abortion clinics, North Dakota had to pay $245,000 after passing a six week abortion ban, Missouri was ordered to pay $156K after blocking a clinic’s license, and so on. These are not small sums of money that taxpayers in these states are being forced to cough up to places like the Center for Reproductive Rights, ACLU Reproductive Freedom Project and Planned Parenthood.
The irony is inescapable. For the political party that likes to claim the mantle of fiscal responsibility, these almost-certainly empty efforts show that symbolically limiting women’s rights is more important than protecting taxpayer money, even when that money is being sent to organizations committed to keeping abortion safe and legal.