What should happen if abortions return to states?

By John L. Micek

To say there’s a lot riding on the U.S. Supreme Court’s eventual ruling in a case challenging Mississippi’s restrictive abortion ban is a galactic understatement.

If, as currently appears the case, the court effectively topples Roe v. Wade, the 1973 precedent that declared a constitutional right to abortion, regulation of the practice would return to the states — a nightmare scenario if ever there was one.

As many as two-dozen states could move to ban abortion if the high court gives them the green light.

Experts believe some states, such as California and Pennsylvania, would become havens for people seeking reproductive care, while others would become reproductive healthcare deserts, putting the lives of millions of pregnant people at risk.

But, according to one Pennsylvania attorney, the practical realities of abortion rights reverting to the states are much more complicated and more nuanced.

In a recent op-ed published by the Legal Intelligencer, an industry trade paper, attorney Howard J. Bashman, an appellate lawyer from Montgomery County in suburban Philadelphia, argues that a decision overturning Roe and Planned Parenthood v. Casey, its 1992 adjunct, “will present numerous issues of fairness rarely encountered in the judicial process.”

If it does toss Roe, Bashman argues that the justices should confront these fairness issues “head-on” by “[decreeing]that all laws having the effect of outlawing or restricting abortion in a manner contrary to Roe and Casey that were in effect when Dobbs is decided will remain unenforceable because they were contrary to governing precedent when enacted.”

And the nation’s highest court should go one better by “[specifying]that the earliest any law having the effect of outlawing or restricting abortion in a manner contrary to Roe and Casey would be allowed to take effect is after all the legislators who voted to enact that law, and the governor of the state who signed the law, were elected to their positions after the court’s ruling in Dobbs had issued,” Bashman wrote.

So, for instance, since voters choose the entire U.S. Senate over six years, with a third of seats on the ballot every two years, the earliest that the federal government could pass a law “having the effect of outlawing or restricting abortion in a manner contrary to Roe and Casey would be in 2029.”

Under such an approach, Bashman continued, Mississippi’s existing law would be declared unconstitutional, and the state could not move on a new statute until its entire state House and Senate were re-elected after any high court ruling.

Undertaking such an action would be unprecedented, but would recognize that the high court has traditionally moved to expand individual rights, rather than “sometimes expanding and other times contracting,” them, Bashman wrote.

Unspoken in Bashman’s piece is the reality that such an action would also turn already contentious political races into the equivalent of demolition derbies, as the Big Two parties, and their voters, mobilized by a seismic issue, vied for control of statehouses and the halls of Congress.

That’s particularly true of battleground states, such as Pennsylvania, which was determinative to President Joe Biden’s 2020 win, and helped hand the U.S. House to Democrats in 2018.

For the last seven years, Pennsylvania’s Democratic governor, Tom Wolf, and his veto pen, have stood as a bulwark against repeated Republican attacks on abortion access. Wolf, who has served the constitutional maximum of two terms, will leave office in January 2023.

State Attorney General Josh Shapiro, currently the only Democrat running for the party’s nomination, has vowed to continue that policy, upping the ante in an already competitive contest for an open seat.

In his op-Ed, Bashman, remains silent on the political implications of any such move on abortion, says he doesn’t see any other way for the court to proceed.

“Ordinarily, the court will merely postpone those issues for another day,” he wrote. “But here, if the court in fact decides to overrule Roe and Casey, the best course is for the court to address those issues head-on in a manner that is most fair to all concerned.”

That conclusion will most certainly not cheer people who can get pregnant, but it does give them a fighting chance.

An award-winning political journalist, John L. Micek is Editor-in-Chief of The Pennsylvania Capital-Star, a brand-new news venture that covers Pennsylvania politics and government honestly and aggressively.

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