Experts Warn GOP War on Abortion Will Turn Red and Blue States Into ‘Mutually Hostile Legal Territories’

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Yves here. My understanding is that it’s not possible to criminalize activity under state law that takes place in another state, but that won’t prevent a lot of effort in that direction. And even if a defendant in a abortion case has good odds of prevailing, who wants to be caught up in a prosecution, particularly since the results too often are a crapshoot? In other words, the aftermath of the expected reversal of Roe v. Wade could become very ugly.

The flip side is, as some experts have pointed out, Alito’s draft is a lobbying document to his fellow justices. They might find a way of coming to a narrowly-construed ruling that supports the Mississippi law but leaves Roe v. Wade intact. But even a positive-for-now outcome does not mean its days are not numbered.

By Kerry Stancil. Originally published at Common Dreams

As the U.S. Supreme Court’s right-wing majority appears poised to overturn landmark decisions protecting reproductive rights and more, experts are warning that the GOP’s war on abortion will lead to interstate legal battles that threaten to “tear America apart,” as New York Times opinion columnist Michelle Goldberg put it on Friday.

Justice Samuel Alito’s leaked draft majority opinion indicates that the high court has voted 5-4 to strike down Roe v. Wade and its companion, Planned Parenthood v. Casey.

If this ruling is not dramatically altered before it is officially issued in June or July, “we will have two wildly different abortion regimes in this country,” wrote Goldberg. “The demise of Roe will exacerbate America’s antagonisms, creating more furious legal rifts between states than we’ve seen in modern times.”

Abortion could be outlawed in up to 26 states as soon as next month, with no exceptions for rape or incest in 11 states, according to the Guttmacher Institute. Louisiana Republicans are advancing a bill that would allow prosecutors to charge abortion patients and providers with homicide.

“Blue states, meanwhile, are setting themselves as abortion sanctuaries,” Goldberg wrote. “Oregon lawmakers recently passed a bill to create a $15 million fund to help cover abortion costs, including for those traveling to the state for the procedure. Something similar is in the works in California. Abortion clinics in Illinois, bordered by several states where abortion is likely to be made illegal, are preparing for a huge influx of patients.”

“The right won’t be content to watch liberal states try to undermine abortion bans,” Goldberg continued. She cited a forthcoming article in The Columbia Law Review, which argues that “overturning Roe and Casey will create a novel world of complicated, interjurisdictional legal conflicts over abortion.”

David S. Cohen, a law professor at Drexel University and co-author of the paper, told Bloomberg Law earlier this week that imposing forced-pregnancy laws on other states is “the next frontier in anti-abortion legislation.”

“It’s going to be an invitation to states to innovate in restricting and banning abortion,” said Cohen. “There are going to be a number of states [that] are not satisfied with just knowing that there’s no abortion happening in their own state. They’re going to want to do more than that.”

Missouri state Rep. Mary Elizabeth Coleman (R-97) is already attempting to bar pregnant people from leaving the state to get an abortion, as thousands of residents have done since Republican Gov. Mike Parson enacted a ban in 2019.

The GOP lawmaker’s proposal would allow private citizens to sue anyone who performs or helps a Missouri resident obtain an out-of-state abortion. It is modeled after S.B. 8, the devastating Texas law that rewards vigilantes with at least $10,000 each time they successfully sue a person who provides or helps someone access an abortion after six weeks—before many people know they are pregnant.

The Supreme Court has refused to intervene against the “bounty-hunting scheme,” as pro-choice advocates have called S.B. 8 and its copycats, and “no court has been able to stop it because it’s enforced by private parties through civil litigation, not government officials,” Bloomberg Lawreported.

The news outlet added:

Coleman’s proposal didn’t get a vote in the House this year, but that doesn’t mean lawmakers in Missouri and in other Republican-led states won’t consider it in the future. An attorney involved in abortion litigation, who requested anonymity for personal safety reasons, said the only way to control abortion travel may be to enact a law like the one Coleman proposed.

“That’s the only plausible strategy I can see for anti-abortion lawmakers if they want to stop abortion tourism,” the attorney said.

“If they just say it’s illegal to leave the state to get an abortion, someone can sue and challenge the constitutionality of the statute. If they do it the way Mary Elizabeth Coleman drafted it, by this sort of private civil enforcement, it can’t be challenged in court pre-enforcement.”

From the time S.B. 8 went into effect in September until the end of last year, Planned Parenthood clinics in surrounding states saw a nearly 800% increase in abortion patients from Texas compared with the same time period in 2020. If states prohibit abortion and pass travel bans of the sort that Coleman has proposed, thousands of people could be forced to carry unwanted pregnancies to term or seek out dangerous methods to terminate pregnancies.

Goldberg noted that under S.B. 4, a separate Texas law passed last year, “people in other states sending abortion pills through the mail to Texas residents could be extradited to face felony charges, though the authorities in liberal states are unlikely to cooperate.”

Medication is now used for a majority of abortions nationwide. Cohen told The Guardian that “pills are going to be a major part of how people continue to get abortions after the Supreme Court rules, so I think that we’ll see states trying to ban pills in all sorts of different ways.”

Anticipating such legislation, Goldberg wrote, “Connecticut just passed a lawmeant to shield doctors and patients. Among other things, it ensures that no one can be extradited to another state for performing or obtaining an abortion that’s legal in Connecticut, and ensures that people sued under a law like the one proposed in Missouri could countersue to recover their costs.”

Legal experts aren’t sure how these types of interstate fights are going to play out, though Cohen told The Guardian that they “are really going to divide this country even deeper on this issue.”

Mary Ziegler, a visiting professor at Harvard Law School, told Goldberg that the closest parallels in U.S. history are fugitive slave laws “because there are not many times in history when states are trying to tell other states what to do in this way.”

“The point,” Goldberg wrote, “is not that abortion bans are comparable to slavery in a moral sense, but that they create potentially irreconcilable legal frameworks.”

According to Bloomberg Law: “Some legal scholars think any attempt to stop people from leaving the state for an abortion would be unlawful since the Constitution protects individual liberty and gives people the right to travel. There’s also a legal doctrine called the Dormant Commerce Clause that prevents states from discriminating against or unduly burdening interstate commerce.”

But it remains unclear if the courts will agree.

“Unfortunately, there’s no real clear precedent on this issue,” said Cohen. “A particularly anti-abortion court like we have at the U.S. Supreme Court, I think, might find enough wiggle room in the past cases to say it’s not unconstitutional because states are allowed to have extraterritorial effect of their laws.”

Citing Cohen, Bloomberg Law reported that “prosecutors could argue that as long as some part of the crime took place in the state, then they are allowed to have jurisdiction and developing the guilty intent to travel may be enough… If a young woman and her best friend decide in Missouri they’re traveling to Illinois to get an abortion, the criminal intent has taken place in Missouri.”

As Goldberg pointed out, reactionaries “have a plan for reconciling clashing abortion laws.” Earlier this week, Republicans vowed to enact a federal six-week ban if they retake Congress and the White House.

“At some point, there will almost certainly be a Republican president and a Republican Congress,” wrote Goldberg. “It’s easy to imagine conservative activists demanding that their leaders jettison the filibuster in order to push through a national abortion ban. It’s hard to imagine the Republican senators who’ve defended the filibuster putting procedural principle above one of their base’s most cherished goals.”

“But long before we get there, the death of Roe will intensify our national animus, turning red states and blue into mutually hostile legal territories,” she added. “You think we hate each other now? Just wait until the new round of lawsuits start.”

More than three-fifths of Americans think abortion should be legal in all or most cases, according to a recent survey conducted before Alito’s draft ruling was leaked. The Women’s Health Protection Act would enshrine healthcare professionals’ right to provide abortions and patients’ right to receive care.

Every Democrat in the U.S. House of Representatives except Rep. Henry Cuellar (Texas) supported the bill’s passage last year. However, Sen. Joe Manchin (D-W.Va.) in February joined Republicans to block the measure.

Senate Majority Leader Chuck Schumer (D-N.Y.) announced Thursday that the upper chamber will vote next week on a modified version of the bill.

“It’s long past time,” Sen. Elizabeth Warren (D-Mass.) tweeted. “And we can’t let the filibuster stand in our way.”

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  1. orlbucfan

    Anyone paying attention knows that the majority of young people are not religious fundamentalists nor believers to start with. Organized religion is slowly dying out in many modern countries. Both historians and sociologists among others have written about this for quite some time. That said, religion and the parasites who feed off it will not go down without a huge fight to the death. Sadly, that is playing out in this country, and may split it apart.

    1. Louis Fyne

      yet organized religion is not being replaced with a coherent worldview like secular humanism, organized religion is being replaced with nihilism and plain old basic survival on the first or 2nd levels Maslow’s hierarchy of needs. IMO.

      Which is why the right is winning on abortion once you remove the right wing and left wing. The middle have more important things to worry about than abortion (or Ukraine or climate or unions or income inequality or IdPol issue of the day)

    2. Joe Well

      Everybody knows? Cite a source, please. Evangelicals are having 15% to 20% more children even with declining fertility.

      The biggest rising demographic is Latin Americans, from countries where abortion is illegal or heavily restricted.

      The majority of everyone of all ages is not evangelical and never has been, but since they are concentrated in low-population states, they are able to achieve this.

      The young will not save us.

      1. TBellT

        Evangelicals are having 15% to 20% more children even with declining fertility.

        I’ve met many children of evangelicals who detest their parents. And others who got kicked out for being queer.

        Even if those parents have a retention rate of 80% those other 20% or committed to defeating their parents on social issues.

    3. Carolinian

      Pence was in my town a few days ago and while he drew a large crowd he also drew a smaller crowd of protestors who oppose the probable upcoming SC decision. I agree that religion is a diminishing factor in many red states even as duopoly politicians do everything in their power to heighten the differences and give themselves an issue with which to distract. If we are arguing about abortion then we won’t be talking about inflation or Biden’s lunatic foreign policy.

      Of course there are red states a lot more conservative than mine and in particular Texas has many evangelicals not to mention Catholic Hispanics. But both Texas and upstate South Carolina/Charlotte NC are top destinations for migrants from California and the Northeast and that’s another factor in the country’s ongoing homogenization. Rather than further dividing it’s just as possible that ordinary people across the country will finally rise up and demand some economic justice. This of course is the establishment’s great fear.

    4. lentil

      Gee whiz, I cannot wait until all of this horrid horrid Organized Religion you speak of disappears from the world so that we can live in glorious peace with ourselves and our neighbors, enjoying total freedom in a godless materialist paradise! Just like the former Soviet Union. And Communist China. Yay!

      And you say it is the young people who shall lead us to this Promised Land, since they don’t care for Organized Religion at all? Wonderful! To speed up this process of de-religioning, then it would seem like we just need more young people! But how do we get more young people? I know, let’s ban abortion!

        1. drumlin woodchuckles

          Our hosts are understaffed and overwhelmed. A strawmanner may have to strawman several times before the hosts can get around to dealing with him/her/it.

          We can offer some help by pointing out the strawman incident as you have done, but also by not responding directly to it ( “strawman discipline”) and by not strawmanning too much too often our own selves.

  2. voteforno6

    The comparison to fugitive slave laws came to mind for me as well. It was quite a complicated mess, which Congress attempted to remedy with the passage of the Fugitive Slave Act of 1850. That law was extremely unpopular in the North, and I would argue was a catalyst for increased anti-slavery sentiment.

    I expect anti-abortion zealots to attempt to nationalize these laws, and they will attempt to do the same with laws regarding birth control and same sex marriage. I think they next several years are going to be very bumpy. These extremists have upset a very delicate balance in the country, and I think that there will be increased militancy on both sides.

    1. drumlin woodchuckles

      Militants for rights and culture will have to armor plate the legal rights and culture states against aggression from the antirights and anticulture states and from their captured Republic of Gilead Federal Government.

      Probortionism might become a proxy for pro-rights and pro-culture in general. If so, the Legal Abortion states can develop the internal cohesion and mature wisdom-based understanding of the situation they face to create Legal Abortion State Guards and Armies to protect themselves against Republic of Gilead Federal Aggression and Occupation. If the Legal Abortion ( legal rights and legal culture) states don’t develop that level of internal coherence and wisdom, then they won’t move to protect themselves from Republic of Gilead Federal Occupation, and they will be forced to submit to the Republic of Gilead’s will within their own borders.

      They will reveal what they are by the choice they make.

      A neat thing about antibortionism is that antibortionism is a rough proxy for anti-conservation and pro-carbon-skyflooding. If the Legal Abortion States could group together into a Separate Survival Interstate Economy, they could work to de-fossilize their own separate survival economy as part of weakening and degrading and attriting the fossil-based economies of the antibortion states, in order to weaken their relative and absolute power.

  3. DJG, Reality Czar

    Funny. What came to my mind is the overlap of anti-abortion states with “right to work” legislation:


    I doubt that this is a coincidence. Yet I know that the Democratic Party, which claims to represent working people and working women, is nowhere to be found.

    And if we accept one description of Trump’s base, as the well-off in certain areas, the BMOC types, the local notables, then the overlap of the maps also is explained: I’d say that it goes back to what I will call the Plantation Manager Mentality that is so typical, and repressive, in the U S of A.

    Thow in Prohibiton. I suspect that the maps also divide the wet and dry states.

    So: we’re seeing puritanism, that timeless aspect of the American character, play out one more time. What’s more fun than repressing the neighbors for the good of their souls?

    1. DJG, Reality Czar

      I meant Plantation Overseer Mentality. Management, as we have come to have to endure it, hadn’t yet been fabricated.

      I would also venture this: By placing the maps of anti-abortion states and “right to work” states together, throwing in Prohibition (and its puritanical and anti-immigrant whiff), one ends up having to adopt Adolph Reed’s analysis. These problems with inequality, that is, gender inequality, economic inequality, and mistreatment / underpayment of working people, are not race-based. Race cannot encompass them, as Reed keep pointing out. So: Think about class.

    2. Joe Well

      Michigander’s and Wisconsin are red on that map and Kansas is not. For that matter, Ohio, Iowa, and Florida are red which would have been a surprise or at least not taken for granted 20 years ago.

      As for inequality: California? Massachusetts? Connecticut? New Jersey? NYC? Lot more unequal than red states.

      The mindset of denigrating large swaths of the country is part of the incredible shrinking Democratic electoral map.

      1. PKMKII

        Louisiana and Mississippi ranks worse for GINI coefficient than California, those two plus Florida rank worse than Massachusetts, and those three plus Georgia rank worse than New Jersey. There’s no simple “red state v. blue state” dichotomy in income inequality.

      2. LarryB

        Abortion is protected in the Kansas state constitution, so it won’t be any lists of states that ban abortion right after the Supreme Court ruling is issued. I understand there is a referendum on the ballot this fall to remove the protection from the constitution.

    3. super extra

      I don’t think it is a character thing or something innate to Americans. What I think is missed in this debate is how it was 100% manufactured and driven by a slice of of the oil aristocracy (the Kochs) as a wedge issue to drive their other policy aims, and they created a whole franchise of networked power centers in other states around the combo of church, resource extraction, muni looting via tax breaks and local gov control to advance these goals. What we have today is the success state of this strategy.

      But there is hope! Look at the middle of the map – what sticks out to me is Kansas, where the Kochs started this whole mess, has refused to pass trigger laws. They were the first place where all the tactics were tried and perfected (I remember very well the ‘Summer of Love’, the first year of city-damaging abortion protests, from my childhood in Wichita!), they went through defunding and state looting before anyone else, and they are slowly throwing it off because of the damage it did to the state.

      Looking at the power aspects of the issue rather than the emotional aspects will show that the state leaders of the most aggressive states on this issue are also the most corrupt within this power franchise that was built. The governor of Oklahoma, for example, has a pretty funny ‘corrupt barbeque’ investigation going on currently due to deals between a restaurant and the state board of tourism. There’s also a bitcoin farm deal and a tax giveaway to an unnamed electronics manufacturer for a new plant.

      1. Keith Howard

        I agree that abortion was chosen as the stalking-horse for issues far more important to the Koch bros and their ilk. But they, and the Rs, decided that they would use religious zealots in order to gain various social and economic objectives. But zealots are single-minded, fanatical, vengeful, and violent by nature. They deeply desire martyrdom, and their only commitment is to their dogma. Stacking the Supreme Court with such individuals will certainly reap the whirlwind.

        1. drumlin woodchuckles

          It may be that the Kochies figured out how to use the Christianazi Satanofascists into moving a Kochieagenda. But the Christianazi Satanofascists have “agency” as the leftoids like to call it, and an agenda of their own. And they will keep advancing it with or without Koch.

          How involved were the Kochies with the TV Preachers? Or Liberty University? Or Bob Jones University? Or with Paul Weyrich? These people are self-propelled. Burn away the Kochos and the Christianazi Satanofascists remain in place and in power.

          Perhaps the counter-Kochies ( if there are any) could figure out how to use “Probortionism” as a mental magnet to rally and organize all the iron filings around. Pro-legal Abortion could become an easy-to-spot label for also-pro-legal-conservation, winning the War On Coal, and other such things. Perhaps the counter-Kochies could start a simple-to-understand political party. Perhaps they could call it the Legal Abortion Party or something. And they could create a short list of other anti-Koch things that the Legal Abortion Party would also pursue, so that people wanting those things as well as legal abortion could find a One Single Party to work through so as to get all those things.

          Of course if the Legal Abortion Party were to shoot itself in the head by adopting Gun Control as one of those other things, it would die off fast, as it deserves. Darwin has no sympathy for suicide.

            1. drumlin woodchuckles

              Which goes to show that if antibortionism can be a proxy for other things, probortionism can be a proxy for its own set of fellow-travelling other things. If the Legal Abortion Movement decides to make it that way.

              Time will tell, and time is short. And I begin to agree with Lambert that the Party Democrats have nothing to offer, and will never ever have anything to offer. So a Legal Abortion Party might be the way to go . . . IFF! . . . it can set up a powerful Intelligence/Counterintelligence bureau to prevent infiltration and contamination by Democrats. If it can’t or won’t do that, then it will become a false flag trojan horse full of Pink Pussy Hat Clintonites and Obamazoid Free Traders. And it won’t achieve much. It certainly wouldn’t win me over. If I am forced to support Free Trade in order to support Legal Abortion, then I will withhold my support from Legal Abortion in order to withhold my support from Free Trade. Can you see why the Free Trade Democrats would be so desperate to infiltrate and subvert any Legal Abortion Party which would emerge? The Democrats will always sacrifice Legal Abortion in order to protect Free Trade.

  4. jackiebass63

    The words Will Turn should be replaced by Have Turned in the head line to reflect reality.

  5. anon y'mouse

    sounds like we are trying to re-enact the pre-civil war years all over again, and the fights over slave catching.

    yes, that’s probably an incendiary parallel to use but what is enforced pregnancy but a form of slavery?

    1. Eclair

      The Monte Python ditty, Every Little Sperm is Sacred, pops into my mind. And, of course, the original sin of Onan. Are we prepared to police teenaged boys (and men) in the privacy of their bedrooms?

      I despair. The Planet is burning, flooding, drying; thousands of species are dying daily, and we humans are preparing to go to war over a stupid idea that elevates the existence of a pre-born human over every other life form on our world.

      1. Michaelmas

        we humans are preparing to go to war over a stupid idea

        No. Sorry, not ‘we humans.’ This is just Americans, in my experience the stupidest, least educated population in the ‘developed world.’

        And if I’m wrong about that, how and why am I wrong?

        1. John Zelnicker

          Sadly, Michaelmas, you are not wrong. Education in this country has deteriorated substantially since I entered the first grade in 1956.

          It started with the “private academies”, read “religious schools”, in the 1960’s that were established to maintain segregation after Brown vs. Board of Education.

          Then, moving into the 1970’s the conservative movement, following the suggestions of the Powell Memo pressured school systems to move towards preparing students to be worker bees, who could be exploited as cheap labor. No more teaching of critical thinking skills, they’re too dangerous to authoritarian control.

          In fact, at some point in the past 20 years, I don’t remember exactly when, the Texas state curriculum committee issued stipulations that critical thinking should not be taught in the schools because it might lead to students questioning their parent’s authority.

        2. Darius

          Money is king, emperor, and god in America. Democracy never had a chance. We see a similar thing happening in the UK.

      2. Sue inSoCal

        Yes Eclair. Those boys won’t have much to worry about. (Look at Kavenaugh.) I might think our Handmaid’s Tale is a diversion, but it’s a dangerous one. After all, we have a Handmaid on the high court! It’s “we’re putting women in their place”. How long did Limbaugh go on and on re “feminazis”and hatred of women? Women are indeed slaves if vigilantes are given rights to hunt them and a foetus is worth more than they are. I can’t imagine this getting better. Women who have been found with “substances” in their systems are already giving birth shackled. The sadism is what I see. It’s not limited to this issue, either. I despair.

      3. HotFlash

        Pls excuse, I am a furriner. Why do so many Americans (and it’s not all that many, per the polls) have scruples against abortion but are perfectly fine with capital punishment? Oh (head-palm) b/c it’s In The Bible (or The Koran, or whatever). As is slavery. Well, as my German-born friend used to say, “What can you expect from a country founded by every kook and religious nut from Europe?”

        1. Dwight

          Fetuses are innocents whose right to life can’t be forfeited by mother. Capital murders have by their crime forfeited their right to life. I have different views on both issues, but the positions are not really that contradictory.

        2. Darius

          Most Americans support abortion rights. But politics in America is fought on the field of pointless culture wars because the money-driven parties won’t allow it to be fought on the field of material interests. As is expressed above, culture politics also effectively and conveniently divides the working class and destroys solidarity.

    2. Amateur Socialist

      I don’t see incendiary. People without bodily autonomy cannot in any sense be considered free. Slaves were not free peoples especially after Dred Scott. Now women aren’t either.

      Plain facts are potentially incendiary but that maybe reflects on those “incendered” (is that a verb?)

      1. anon y'mouse

        what will be really incendiary is if we re-fight the Civil War all over again over something that was settled in Europe in the 1920s.

        i know! let the non-abortion states and the abortion states do economic sanctions against each other!

        something makes me doubt that this would ever occur, as it would become clear very quickly that no state is self-sufficient. this is similar to those fantasists that believe they can cleave off the coastal enclaves of “Enlightened” and leave the flyovers shivering in the dark, or the refrain of “we send FedGov $2 for every $3 they take”. um, who from and where does the food, water, energy and other low cost goodies you use come from. i guess that is all to be replaced with actual slaves in the 3rd world, that Coastals have convinced themselves are being “uplifted” by taking on our Gilded Age environmental and labor violations.

        1. Copeland

          Don’t forget about Idaho wanting to cleave itself off as well, and oh by the way they need most of the “good” parts of Oregon, access to the coast and some of California and Washington to become truly Great(er) Idaho!

    3. drumlin woodchuckles

      People of the Legal Abortion States should flip the script on this little Civil War Re-Enactment Plan by shutting all the escape valves between the Outlawed Abortion States and the Legal Abortion States. The Legal Abortion States should restrict legal abortion to legal residents of the Legal Abortion States. Any Legal Abortion State doctor or clinic or anything else giving an abortion to a resident of an Outlawed Abortion State should lose their license, business, etc.

      The point would be to turn the Outlawed Abortion States into social pressure cooker time bombs so that any civil war which happens would happen within the Outlawed Abortion States themselves. They could have a series of “Lebanese Civil Wars” within their own Outlawed Abortion States borders.

      Meanwhile, the Legal Abortion States should re-arrange their political economies to become as de-mechanized as possible and as hand-laborised as possible to create as many job opportunities as possible within the Legal Abortion States. They could then offer those job opportunities to pro-abortion refugees from the Outlawed Abortion States. The goal of that would be to depopulate and brain-drain the Outlawed Abortion States so as to weaken them and turn them into ugly failed-state shithole backwaters . . . in order to break and destroy their ability to exert power through the Federal Government if there still is one.

      “Boycott” is a purist pose which should be avoided. I am not a purist and I will continue buying Azomite from Utah for my garden. But if the very same Azomite-equivalent were also available from a Legal Abortion State, I would buy that in preferrence in order to support a Legal Abortion State economy. That approach could be pursued by the Legal Abortion States and the Legal Abortion people within those states to try degrading and attriting the population and power of the Outlawed Abortion States.

      1. Bill Carson

        “The goal of that would be to depopulate and brain-drain the Outlawed Abortion States so as to weaken them…”

        Of course, those depopulated states would still be entitled to two senators each, which is one of the things driving this cultural war in the first place.

        ETA: And anyway, we’ve got too many people in Colorado already. Please don’t cause even more to move here.

        1. drumlin woodchuckles

          But those brain-drained states would lose congressmenwomen as they lose population. So there is that.

          And as more probortion refugees move into Colorado, you can encourage antibortion Coloradoans to move to antibortion states, to mitigate that rise in population.

          Let the antibortion states become social and cultural sumps into which all the very lowest, worst and dummest Americans choose to drain of their own free will ( with suitable encourage from better-quality people in the probortion states).

  6. The Rev Kev

    At this rate, it will only be a matter of time before all females between the ages of about 13 to 40 will have to do an on-the-spot pregnancy test before leaving those State borders and be put on a database for future examination. Will it happen that all the women aboard an airliner in one of these States ready to depart will be taken off and medically examined in an ambulance because an aborted baby is found in an airport bin like happened in the middle east a few years ago? I seem to recall that when Ireland had banned abortion, lots of women hopped a ferry to England to get an abortion done so Ireland tried to ban pregnant women leaving the country for long enough that the baby would go to term. So I saw a cartoon today which explained how Democrat inaction got the country into this particular mess-

  7. They only need 26

    The radical far-right only needs to make 26 states vile enough to have reasonable citizens move to one of the other 24 states. Then they have 52 senators and, at the least, a permanent veto on government. When they also have the presidency, they can ram through American Taliban, political activist judges that support their fascist agenda. Check and mate.

    1. jefemt

      Brings to mind Margaret Atwood’s Handmaid’s Tale. Disheartening. I think of Pence every time I ponder that great book.

    2. anon y'mouse

      people who are settled won’t move, but young women might. this could well result in brain drain.

      i hope the non-slave states have plans that go beyond free or subsidized family planning services. these people (it won’t be just women who flee) will need jobs, homes, etc.

      granted, we never did much about that with population growth and porous borders and now have not enough to go around for those already in those places.

    3. Michael Ismoe

      I don’t understand why someone in the Dem Party hasn’t dropped a bill to increase the SC to 15 members rather than 9. Now that stare decisis is a thing of the past, pack the court, overturn every past precedent and it’s a Constitutional Convention that the packers control.

      Even if the court packing doesn’t go anywhere, it might tone down the radicals on the SC. They got teh message when FDR tried it. The packing plan lost but the rulings became less extreme.

    4. drumlin woodchuckles

      If enough pro-Abortion refugees can be drained from the 26 states into the other 24 states, those other 24 States will have a bigger share of Congress than the 26 states will have. If that were to happen, the 26 state senators could block all legislation in the Senate, but the 24 States share of Congress could deprive the 26 States share of Senate from having any Christianazi Satanofascist legislation to be able to pass through the Senate.

      Meanwhile , the 24 States could work on integrating their 24 state economies into a semi-national economy of their own and then work on excluding the 26 States from that economy. They could also set up their own 24 state State Guards to be able to work with eachother as a ” shadow national armed force” in distinction to the Federal Armed Forces. That would make them less and less invadable by a Christianazi Satanofascist President and Department of Defense.

      Though again . . . if the 24 States also decide they believe in gun control, that means they believe in suicide. In which case, let Darwin take them.

    1. drumlin woodchuckles

      About half of the country prosecutors have said they will not prosecute any abortion cases in their counties.
      Perhaps wannabe-prosecutors in Michigan’s Outlawed Abortion counties could run on Non-Prosecution of Abortion cases, and if elected, could increase the number of Non-Prosecution counties. The people of those counties could then work on boycotting the Outlawed Abortion counties in order to reduce their population so as to reduce their “share” of the Michigan State Legislature. If probortion Michiganders could take enough power-command over legislation, they could legalize abortion in Michigan and then create conditions which would encourage antibortion Michiganders into finding a Christianazi Satanofascist state they would rather move to and live in.

  8. NotTimothyGeithner

    Wow, Schumer is promising a vote. I’m sure he will get to it in a timely manner like voting rights or BBB.

    1. Pat

      What do you think the odds are that if there is one it will be in October, lose, and be more fodder for “more Democrats, we need more Democrats!” Campaign ads. (All while ignoring that top Democrats support anti abortion candidates and don’t think abortion should be a litmus test.)

      I say even money.

      1. Dr. John Carpenter


        When I saw the headline, my first thought was “well, too bad turning them blue ultimately won’t have any impact on this at all.” Maybe at a local level it will, for a time. I will be shocked if the national Dems all of a sudden spring to action (aside from fundraising efforts.)

      2. drumlin woodchuckles

        It would create a political vacuum which a Legal Abortion Party could try to fill.

        ” We are the Legal Abortion Party. What’s the difference between Us and Dem? We mean it. They don’t.”

        It could be a compelling sentiment, if it were sincere.

        1. drumlin woodchuckles

          I just thought up a revision of that saying which is even punnier.

          ” We are the Legal Abortion Party. What’s the difference between Us and Dem? We mean it. Dem don’t.”

  9. Dr. Phips

    Just like the Roman Empire, this country is crumbling from within. Reading from history books it looks pretty much like it was then: “Constant wars and overspending had significantly lightened imperial coffers, and oppressive taxation and inflation had widened the gap between rich and poor”. Substitute taxation for the huge pay gap between the top 10% and the rest of the people, plus the absence of healthcare (except if you can pay for it) and add the culture wars to that and you can see where this is going.

    1. drumlin woodchuckles

      So figure out how to make your part of a post-Roman post-America survival-ready. If your part can’t be made survival-ready, move to a survival-capable part of America to prepare for post-America survival there, if you can.

  10. Safety First

    Missouri state Rep. Mary Elizabeth Coleman (R-97) is already attempting to bar pregnant people from leaving the state to get an abortion…

    Sodding sodded sod sod…


    I got flashbacks to the Fugitive Slave Act even before finishing the first few paragraphs, since federal action by a Republican majority in Washington could “fix” a lot of the legal questions raised.

    The question is, should the Republicans actually try to push something like this through, or just “trade” on the concept of doing it at some point in the future, as they did with Obamacare for a number of years, using the prospect of action to raise funds and get votes but not actually planning to do very much if back in power?

    Separately, I am sure that any lawyer worth his, her or its salt could come up with a state law inflicting drastic penalties, civil or criminal, on pregnant people who either procure pills or travel out of state to cease being either pregnant or people, that sidesteps direct conflict with abortion protections in any “blue” states. Then again, I am also having visions of Democratic leaders in “blue” states consistently folding in any such direct conflicts so as to keep trading on the issue themselves…

    1. Librarian Guy

      But the GOP is the party of “small government”, innit?

      Remember when they used to go after “trial lawyers” who sued for medical malpractice injuries, e.g.? And now they’re planning to empower (via “States Rights,” a segregationist favorite concept) to make the Red States & individual fetus-fetishists “guardians” of individual women’s wombs & uteruses (or should that be uteri)? . . . what miserable, hate-filled people.

      “1984” didn’t come to pass fully with Trump’s election, the fanfare book sales were premature, this would be the time for those unfamiliar to read it. And though I don’t personally practice “Vote Blue No Matter Who”, if the Rs get a majority House and Senate I would expect national, very restrictive laws to remind the women they are c(h)attle “intended” per the Christian “faith” to give birth and nothing more.

      1. Safety First

        On combining the rhetoric of “small government” with nationalised policy – there is a fairly recent book, “This Vast Southern Empire” by Matthew Karp, that goes through how the South, notwithstanding all the talk of “states’ rights”, spent much of the antebellum period building up federal military and navies in response to what they perceived to be a geopolitical threat to slavery from Great Britain. It’s not exactly the same as abortion, what, but the concept of reconciling small-government this but big-government that is fairly similar.

        In general, none of this should surprise. What sort of a government does any average capitalist desire most? The one that is incredibly weak in every respect EXCEPT in defending or advancing the economic interests of capital. And providing it with free infrastructure, I suppose.

    2. drumlin woodchuckles

      Exterminating the Democratic Party in those states and replacing it with a Legal Abortion Party could solve that problem.

      But then I would like to see such a Legal Abortion State ban the offering of abortion services to abortion-seeking refugees from neighboring Outlawed Abortion States. The point would be to turn those states into pressure cooker time bombs on the way to internal civil wars within their own borders. Such is the iron logic of war to those who believe in winning the war that is forced upon them.

      1. Safety First

        The Legal Abortion Party…LAP! I like it! We could have them fight against the Democratic Old Guard, or DOGs! LAP! DOGs! LAP! DOGs! LAP! DO………….

        1. drumlin woodchuckles

          If you like it, feel free to go ahead and use it. I give it away for anyone to use, re-design, improve on, and otherwise prepare for weaponisation and dissemination.

          I hereby CopyLeft the name Legal Abortion Party.

  11. flora

    I remember pre-Roe days where each state had its own laws. Some were strickly against and some were more nuanced and concerned with the woman’s health as a factor. We’re returning to those days.

    If this turns into a ‘civil war’ – more than say the Court gutting the voting rights act turned into civil war (it didn’t) – it will be because the MSM wants it for ratings and both parties want it for campaign issues and donations. My 2 cents.

    1. Arizona Slim

      While I was attending junior high school in suburban Philadelphia, there was a girl in math class who was, shall we say, fast. I can remember several conversations between her and her friends in that class. The topic: Fast Girl’s recent trips to New York.

      Let’s just say that she wasn’t traveling to NYC to see the Empire State Building and the Statue of Liberty. And, yes, she looked old enough to pass as a legal adult.

  12. Rolf

    From a Pew Research published a few days ago, 75% of young people 18-29 support legal abortion, either with no or some exceptions[0]: that is the future. This ultra conservative Supreme Court does not reflect the views of an increasing majority of its citizenry. Do conservatives in Congress and state legislatures really consider such a mismatch a durable success?


    1. NotTimothyGeithner

      Team Blue folded on voting rights already. Schumer promised a vote that never materialized. They aren’t worried for 10 years.

      On the other hand, T0this is why the GOP snowflakes are having a melt down about leaks and protests at Kavanaugh’s house. It’s the only way to oppose them.

    2. Glossolalia

      Responding to a Pew Research poll is not the same as showing up on election day. Also, how often do elected officials’ agendas reflect the general public’s agenda?

    3. Safety First

      I wonder.

      Remember all those young people from the 60s who were antiwar, or anticapitalism, or whatever else? Twenty years later more than a few of them were voting for Reagan and Bush (and Clinton). I mean, Clinton himself was more or less of that generation, and ended up being one of the more right-wing presidents – by policy, not rhetoric – in modern memory.

      Things can change is all.

      As for political institutions not reflecting the views of the majority of the population – Medicare For All has consistently polled in the mid-upper 60s since the 1990s. That’s at least 30 years running. And yet nothing has happened, and we did not even need to do a Pinochet-style fascist coup to clear out any vestiges of left-wingerism. If there is one thing, the only thing, that the people in Washington do well, is to manipulate the extant political system – established, incidentally, just for this purpose – to protect the interests of the wealthy elite against the will of the majority. It’s a republic, not a democracy; never was…

    4. drumlin woodchuckles

      If that 75% of young people 18-29 are not prepared to contain, defeat and disempower the other 25%, then that 75% has no future in this country.

  13. chuck roast

    The Federalist reactionaries love to call themselves “originalists”. By this I believe they mean they are enamored of the founding documents. Here, for example, is wording from The Articles of Confederation:

    Article II. Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.

    Of course The Federalist Society was originally a self-support organization set up by former officers from the American Revolutionary War. Given the world-view of the original originalists who cared not a wit for the common soldiers, it’s hardly surprising that the current crop would care not a wit that they bring the commoners to one another’s throats.

    1. Safety First

      The whole “originalism” concept is a crock, has always been a crock, will always be a crock, and we ought not pretend otherwise. The proof is in Scalia’s opinion for the D.C. gun control case back around 2010 – forget the name off the top of my head (Heller?) – where he literally spends 1/3 of the text arguing the following: by every rule and convention of the English language, the 2nd Amendment ought be interpreted as A; however, I, Antonin Scalia, through the use of a special originalist Ouija board, have divined that in writing down the words that mean A, the Founders actually meant for them to be interpreted as not-A…

      It’s a thing of beauty, in a way, but the basic idea is that these people’s principles strictly vary with the party line, whatever it happens to be. The rest are just mere words, just like every Democrat now calling themselves a “progressive”, or every Republican calling whatever they might be against in a given moment “socialist”.

      1. marym

        Originalism, states rights, religious freedom, “deeply rooted”

        They’re enamored of a vision of society. The elements of the long standing right wing project to implement a social agenda, and the dire consequences of that agenda for people’s lives, aren’t a secret. The current members of the court are part of that project. They were always going to end Roe when they had a majority on the court.

        Alito had to ramble for 90 pages to find some words, but apparently satisfied himself that “deeply rooted” was the way to go this time.

        1. bongbong

          The various rhetorical devices like “states rights” or “originalist” etc etc etc are there SOLELY to justify an already idelogically (sp) determined decision.

          What the judges would really prefer is to have one sentence decisions along the line of “I (We) want it this way, and I (we) have the power to make that law, so screw you. God bless the court!”

  14. marym

    With the new laws states are passing, and other further restrictions politicians are suggesting, post-Roe will be a much harsher environment than pre-Roe.

    Even without a national ban or fugitive uterus laws, there will be fewer options and more risk, even in red states, even for women not seeking abortion. Legal restrictions on contraception prior to overturning Griswold v. CT and Eisenstadt v Baird, and legal jeopardy for seeking/providing medical care for pregnancy complications, for example.

  15. T_Reg

    This situation has the potential to accelerate the fragmentation and collapse of U.S. society. Even if the Supreme Court goes the less radical route of simply dumping Roe v Wade, Republicans will likely control the Senate again soon, and gerrymandering (along with Democratic fecklessness) will at the same time likely give them a permanent House majority, so making abortion illegal nationwide is a strong possibility. Democratic states will throw up their hands and submit to every whim of Republicans, saying “Whaddaya gonna do?”, but what if a few find a backbone and simply refuse to obey Supreme Court decisions OR federal law? Will the military (or a federal police force) flood into those states and chuck out their legislatures and governors? Or, in the face of Democratic surrender, will people rise up and form independent regions? Will the U.S. have its own Ukraine? Or Yugoslavia? Or will the U.S. just settle down in its emerging role as a totalitarian state as brutal internally as externally?

    There are actions Democrats could take to mitigate the situation, such as double the number of justices right now, or extreme gerrymandering of Democratic states right now, but the profoundly undemocratic nature of the Senate virtually guarantees that Republicans will control the Supreme Court until either the court and/or the nation is no more. I’m not feeling optimistic.

    1. flora

      This issue is returning to the states. If the Dem estab hadn’t spent the last 30 years ignoring once relatively strong state Dem parties – strong enough to elect some govs and send some Reps and Sens to DC every election – and hadn’t gutted the industrial Midwest, the state Dem parties (which barely exist now and are entirely beholden to the estab) would be in much better shape to push back on awful gerrymandering and other issues. The estab Dem party abandoned the flyover areas and then mock flyover as deploradostan. Nice touch.

      (True stories: my state could have rid ourselves of a terrible GOP gov after his first term except his Dem opponent – who everyone like and expected to win – had his campaign hijacked … er … “advised” by the nat dem party. He lost. Earlier a Dem candidate running for US congress was “advised” by the nat dem party and lost. 2 years late same Dem candidate ran, ran her own campaign telling the estab to get lost and won. There there was the recent dem estab undermining a labor and wages focused candidate for US congress. He was on track to win until the state Dem party turned on him after he won his primary. I have way too many stories like this just from my flyover state. )

  16. Bart Hansen

    “Mary Ziegler, a visiting professor at Harvard Law School, told Goldberg that the closest parallels in U.S. history are fugitive slave laws “because there are not many times in history when states are trying to tell other states what to do in this way.””

    This issue was cited in South Carolina’s reason for leaving the union, that other states were protecting fugitive slaves instead of returning them to the south. In other words, this was contributive to the Civil War.

      1. drumlin woodchuckles

        You have taken the first step towards wisdom. There is no we. There is Us and there is Them.

        ” We”? No! Us or Us not. There is no “we” “.

    1. Carolinian

      It’s not exactly the same since slaves–horribly enough–were considered property and therefore those harboring them–horribly enough–as thieves.

      A better test case would be this one

      Murray added that the Virginia law ultimately overturned in the Supreme Court’s 1967 Loving v. Virginia ruling both prohibited interracial marriages and made it unlawful to leave the state in order to transact an interracial marriage.

      which seeks to regulate behavior even if out of state.

      The premise of the above article is that there are hoards of fanatics (including the SC) determined to outlaw abortion in America. I’d say this is quite the overstatement. Also see my Turley link in comment at end of thread.

  17. Dave in Austin

    I thing people are missing one point on the leaked draft. Will the case be decided in this term or not?

    If the draft leads to a consensus, the case will be decided before this the summer. But the time pressure applied to the Court by the redistricting cases in NY, IL and maybe CA could put the Court in a “Must be done now” work crunch that will delay a ruling.

    If the case drags on, as many before have done, it will be decided by the Justices during the summer recess and be announced in September. Which would the liberals (or the Conservatives) prefer? More time to use the issue or a late decision 60 days before the Congressional election.

    And Yves is correct, you can’t stop someone from crossing a state line to do something that is legal in another state. So far the creative US use of “universal jurisdiction” had not been extended to the states… so far. But I’m sure both sides are researching how far “Crimes against humanity” can be stretched in a state Court.

  18. David in Santa Cruz

    I find this debate over forced pregnancy to be exquisitely ironic.

    The proponents of forced pregnancy feign obsession with “freedom” while the opponents of forced pregnancy rattle-on that more Russians should be killed for intervening to stop the shelling of the DPR that has killed 14,000 people since 2014.

    Meanwhile, kids are going to keep on making dumb mistakes until their Ego eventually sorts-out their Id. I suppose that as the thin veneer of civilization fades from our overcrowded and overheated planet, the cruelty is the point.

  19. herman_sampson

    But you can still be penalized (though not by the state) for actions in another state: since Marijuana tests look at THC in fat, one can partake in a state where it is completely legal, but one will fail a job drug test many days later, which can disqualify one from a new job or be grounds for dismissal from a current job.
    This might be similar to the abortion bounty hunter law in Texas.

    1. Big River Bandido

      State law and corporate policy for employees are two entirely different things.

    1. flora

      Thanks for the link. Kansas has closed primaries. Time for me to change my registration to GOP so I can vote against this in the GOP primary. Strategic voting. (I could tell a funny story about Brownback losing 30% of GOP primary voters to a no-name, first-time pol during his second run for Gov. Unheard of for a sitting pol, especially a gov to lose that much base vote in a primary. After his first four year term he wasn’t liked by either party. )

      1. flora

        adding; closed primaries are the bane of electing common sense mainstream moderate politicians. Closed primaries guarantee the most extreme edge of each party will control the primary outcomes. Unaffiliated voters are denied a vote in closed primaries, and unaffiliated voters are the largest voting group. In open primaries unaffiliated voters can vote in any one party’s primary by declaring intent at the polls. That leads to better candidate choices for voters in the general election, imo. Until the far right GOPers in Kansas managed a stealth assault on the state party and instituted a closed GOP primary the state’s GOP pols were generally moderate and more interested in Main Street issues than in culture wars.

        1. flora

          adding: Thomas Frank has written several articles and books about the failure of the Dem elites. Time to re-read “What’s the Matter with Kansas” followed by reading “Listen, Liberal!” and “Rendezvous with Obliviion .”

  20. George Phillies

    The Fugitive Slave laws caused difficulties because they were Federal, imposed on all the states. The last time the law was enforced in Massachusetts, the Governor had to deploy — to take the slave from the Boston Jail to a waiting ship — several infantry regiments and several artillery batteries to guard the way.

    With respect to someone in Texas suing a Massachusetts physician for performing an abortion on a fugitive Texan woman, one solution is for the Massachusetts legislature to revive another old law. Barratry. You file that suit, we Massachusetts people get our hands on you? After conviction you’re looking at ten years in Walpole.

    State by state laws are the least worst solution to the problem, especially if Alito clarifies his ‘returned to the states’ to render unconstitutional all Federal laws on the topic

  21. HotFlash

    My dear Mr. Phillies, I only know about barratry in a maritime law context, ant then only vaguely. How would it apply here? It was abolished in Cdn civil law back in ’55. IIRC, so I have no idea how it would/could help. Can you elaborate, please?

  22. Alan Roxdale

    I honestly believe the political class is just whipping this issue up to distract from their woeful domestic and foreign issues.

    Much ado has been made of the case around this leak, but doesn’t the Supreme Court hear several such eternal abortion fights cases each year? The blowout around this particular case does not seem proportionate to me, and I suspect a deliberate inflation of the issue on both sides of the isle as a matter of political convenience. Bases are rallied and radicalized, voters are polarized, acute and chronic economic and corruption issues are swept aside wholesale.

    This hostile legal infighting smacks of more of the same. Deliberate posturing all involved know to be legally unviable, futile, or petty. Real lives get ground under by the consequences of such mob politics, but it continues because it is in the direct interests of power to capture the public’s attention with these issues.

  23. LAS

    Let’s talk about the unborn in need of legal protection as a population — as they are distinct from children who are wanted. No one knows the size and demographics of the unborn in need of legal protection. Its physical and mental traits are unknown. Even its nationality is subject to dispute. If admitted into the country, these unborn in need of legal protection will be a burden on society for roughly 18 years. Some perhaps forever. That burden will largely fall on private individuals or “sponsors”. But there are also public costs, such as public schooling. An indeterminate fraction will require particularly expensive health care. Another small fraction will be violent perpetrators, in need of policing. Some will endanger the health of their “sponsor”. Others will need social work/services. Immigration into the USA is denied to many other populations for these very reasons; paradoxically, not this one. It should be required the Government Accounting Office do an economic and social impact report, as they do for many other policies.

    Why “pro-life” people are so impulsively eager to bestoy civil rights on the unborn over the born populations of the world sure beats me … except as a means of making born female citizens differentially illegal and on the defense. All women will be turned into potential identity outlaws. As such all women shall be put into a new place of low status and punished. Is that it? Just as God spoke to Eve in Genesis? This is not constitutional law; it’s a theological fallacy that somehow God depends on the assistance of mankind to impose his will.

    1. drumlin woodchuckles

      Well . .. yes. That is “it”. That is part of the goal of Christian Fascism.

      ( And here you thought maybe I would treat your question as rhetorical. But I have chosen to treat it as literally real. And so I have offered a literally real answer).

  24. bluedogg

    That’s what happens when the high court renders a verdict that it has no right to, there is nothing in the Constitution dealing with abortion as that was a state issue reserved for the states not the almighty high court. Like so many things, the Constitution is so vague on simply kicking the can down the road for someone else to deal with that it’s led to a multitude of problems.

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