Now that Roe v. Wade has been knocked down, abortion opponents are taking a multifaceted approach in their quest to end abortions nationwide, targeting their strategies at the dynamics of each state as they attempt to create new laws and defend the bans in court.
An anti-abortion group has proposed model legislation that would ban all abortions except to prevent the death of a pregnant woman. New legal frontiers could include the prosecution of doctors who defy bans, and skirmishes over access to medical abortions are already underway. Others hope to elect more Tories in November to advance an anti-abortion agenda.
“For Republicans, the post-Roe world will be very different, from a legal standpoint,” said Jonathan Turley, a professor at George Washington University School of Law. “For the past 50 years, Republicans have been on the offensive nibbling the edges of Roe. Now they will play defense in all 50 states. »
The U.S. Supreme Court decision overturning Roe v. Wade said abortion is not a right under the Constitution, creating an opening for states pushing to get more restrictions on the books. More recently, lawmakers in West Virginia and Indiana have imposed new restrictions, with varying success.
James Bopp Jr., general counsel for National Right to Life, has been working on model legislation for states, but said that with few legislatures in session, “the process of passing new laws is just beginning.”
It recommends banning all abortions except to prevent the death of a pregnant woman, though it provides language for states that want to make exceptions for rape or incest. It also recommends criminal penalties for anyone, including a doctor, who knowingly or intentionally causes or facilitates an “illegal abortion.”
The model law would not criminalize a woman who has an abortion.
A memo attached to the model language suggests anyone aiding and abetting or conspiring to cause an ‘illegal abortion’ could also be prosecuted, including those who provide instructions on how to self-administer or obtain an abortion deemed illegal under the law. This person should know that the woman was seeking an abortion and intentionally help her obtain one.
“The general provision of information is protected by the First Amendment,” Bopp said.
It also contains wording that makes it possible to prosecute a person – other than a pharmacist or drug manufacturer – who knows that a woman is planning to use an abortion-inducing drug to induce an illegal abortion, and intentionally delivers the drug. or advertises such a drug for sale.
But in the meantime, Bopp said abortion opponents look to November, when they hope to elect anti-abortion candidates who will enact such laws.
With that goal in mind, many conservatives are taking a “cautious pause” on the abortion issue, according to University of Minnesota politics professor Larry Jacobs.
“Republicans have a much better chance of winning competitive races across the country talking about inflation, crime and Joe Biden,” Jacobs said. “When they talk about abortion, they’re doing Democrats a service.”
Conservatives also see new court battles on the horizon.
Jonathan Mitchell, the former Texas Solicitor General who is now a private practice attorney, has proposed some of the key elements of a Texas law that bans abortions after fetal heart activity is detected. His innovation was to make violations enforceable through lawsuits brought by citizens rather than the government.
Mitchell, who represents Texas and South Dakota in abortion lawsuits and has helped lawmakers in several states craft abortion bans and restrictions, said future legal battles could focus on who pays for abortions for people living in states with bans that aren’t enforced due to court injunctions.
“Abortion is still a criminal offense in every state with a pre-Roe trigger law or ban, whether or not a state court injunction is in effect,” Mitchell said in an email. at the Associated Press. He said an injunction does not actually block a law as many think, but temporarily prevents it from being enforced.
He said employers or those who help fund abortions in states such as Utah, Kentucky, Louisiana or West Virginia are breaking the law and could be sued. He said if bans exist but are suspended, abortion providers could be sued retroactively.
“And the mere risk of potential lawsuits may be enough to deter abortion providers from offering abortions to out-of-state residents, especially when such lawsuits may be brought,” he wrote, “ not only against the doctor but against everyone else involved.”
New York University Law School professor Melissa Murray said whether those who pay for out-of-state abortions could be charged is “uncharted territory.” Employers and funds could argue that they are exercising their right to free speech, she said in an email. “That said, a state could argue that (the groups) facilitate the violation of a criminal law – essentially, they operate as accomplices.”
Fear of prosecution has already led to some sort of victories for abortion haters; some clinics closed due to confusion, reopened, then closed again. It also led doctors to withhold emergency care until it became clear that a fetus had died or a woman’s life was at stake.
Erin Hawley, a lawyer with the conservative Alliance Defending Freedom party and wife of Republican U.S. Senator Josh Hawley of Missouri, expects litigation over medical abortions to continue.
She pointed to an ongoing legal battle in Mississippi, where drugmaker GenBioPro is suing the state over its provisions that make it harder to get a prescription for mifepristone, a drug that can induce abortion. State policies conflict with regulations of the United States Food and Drug Administration, which courts have ruled generally take precedence over state law.
But Hawley said that might not apply here.
“It’s always a big deal for a federal agency or law to override state law,” Hawley said.
Some states take different approaches.
In Louisiana, the State Bond Commission voted last week to withhold a $39 million line of credit for a sewer and water project in New Orleans to “send a message” after authorities City and local governments said they would not enforce that state’s abortion ban. The law is currently blocked by a court and is not enforceable anyway.
Texas sued the federal government in mid-July after the Biden administration issued guidelines that hospitals are required to offer abortions if necessary to save a mother’s life.
Next week, Kansas voters will consider the first national abortion referendum since Roe’s overturning. If approved, it could make Kansas the fifth state to declare that its constitution does not provide the right to abortion and would open the door for the legislature to further restrict or ban abortion.
Bopp said that while court battles and midterm elections are the current focus, abortion opponents would eventually like to see federal and state constitutional amendments that would explicitly protect the unborn child, though it recognized that it would be a challenge.
“A constitutional amendment has been one of our goals. But that requires a hell of a consensus,” he said.
Find AP’s full coverage of the overthrow of Roe v. Wade at: https://apnews.com/hub/abortion
The Independent Gt