(Illustration: Lex Villena; Christopher Nuzzaco, Tom Dowd)
The basic argument against abortion was succinctly expressed just six weeks ago by Florida Sen. Rick Scott in the pages of The Wall Street Journal when he boldly pronounced that "the Republican position on abortion is based on a fundamental belief that life begins at conception." Leaving aside exactly what conception means—is it the same as fertilization, for instance?—such a statement implies that abortion, with the possible exception of those performed to save the life of the pregnant woman, is murder. It's not just conservatives like Scott who feel this way, of course. Some libertarians, including some of my colleagues here at Reason, share that view and thus call abortion nothing less than "child murder."
The equation of abortion with murder may be ahistorical (more on that in a moment), but now that Roe has been overturned, such a belief has profound implications for the people living in the 26 states that are likely to ban most, if not all, abortions. If life does indeed begin at conception, then the state has an affirmative duty to protect all zygotes (fertilized eggs), blastocysts (week-old zygotes), and embryos (zygotes implanted on the uterine wall). From a libertarian perspective, the implications of such a shift are staggering. This is a recipe not for limited government but for one that must, in the name of protecting life, liberty, and the pursuit of happiness, surveil and track all acts of potential procreation.
The Guttmacher Institute reports that 13 states have "trigger" laws that immediately limit access to abortion based on the stage of pregnancy, ban it except to save the life of the mother, or revert to laws on the books before Roe or the 1992 abortion-rights case Planned Parenthood v. Casey was decided. Another "nine states [have] pre-Roebans still on the books, and 11 states [have] early gestational age bans blocked by court orders. In states with multiple bans, state officials will determine which ban to enforce if Roe is overturned."
What will the new reality look like over the next few weeks? Alabama has a 2019 law on the books that, as Jacob Sullum has reported, "bans abortion at any stage of pregnancy with a few narrow exceptions," such as when the mother's health is seriously threatened. A federal injunction kept the legislation from taking effect, but it will now presumably become the law of the land in the Heart of Dixie. With the end of Roe's protections. Idaho, Tennessee, and Texas all have near-total bans on elective abortions that will go into effect in 30 days.
Where will the freedom of states to prohibit abortion lead? Almost certainly to more and more draconian restrictions on abortion and, eventually, long-settled issues of contraception, sexual privacy, and the rights of gays and lesbians to sleep together and get married. Indeed, in his concurrence with the majority opinion in Dobbs v. Jackson Women's Health Organization, Associate Justice Clarence Thomas stated that "we should reconsider all of this Court's substantive due process precedents including Griswold, Lawrence, and Obergefell," three cases that dealt with, respectively, the right to obtain contraception, same-sex relations, and gay marriage. It's a positive sign that Associate Justice Brett Kavanaugh said that governments can't prevent women from leaving their home states to procure abortions elsewhere, an idea that was being floated by pro-lifers in the run-up to today's decision.
The new equilibrium is hardly a stable one. The Mississippi law at issue in Dobbs banned abortions after 15 weeks, a point by which over 90 percent of abortions are performed anyway. While it was being litigated, Texas passed a ban on abortions at six weeks that managed to avoid a federal injunction by giving private citizens rather than state agents the right to sue to enforce it. Such a create-a-snitch workaround—worthy of former East Germany in empowering residents to spy on one another—was quickly adopted by states such as Oklahoma and Idaho.
Surely we can expect ever-shrinking time limits on when abortion is allowed at all and expansions of who can alert authorities when "conception" and thus life has occurred. Does anyone feel comfortable with the idea that politicians like Rick Scott will be empowered to protect "life" that "begins at conception"? As Florida's governor, he pushed unconstitutional plans to drug test all state employees, job applicants, and welfare applicants. This is not a person who takes limits on government seriously.
Contra Scott, the notion that "life begins at conception" is hardly a "conclusion grounded in faith and values, but also in science" (as he avers in his Wall Street Journal piece). The two main arguments of Associate Justice Samuel Alito's decision in Dobbs are deeply flawed, as Damon Root shows. The idea that abortion goes unmentioned in the Constitution and thus can't be protected by it is a travesty of the concept of unenumerated rights retained by individuals. As important, Alito glosses over the historical reality that, Root writes,
the states followed the common law at the founding, the American people originally understood that lawmakers lacked the lawful power to prohibit women from ending an unwanted pregnancy during its early stages. The freedom to end an unwanted pregnancy before quickening thus falls within the original meaning and understanding of a right "retained by the people."
Indeed, even the Catholic Church, which has long been the most vocally anti-abortion religious group in America, didn't formally condemn abortion until the mid-19th century. It's rare for people on different sides of the abortion debate to acknowledge the other side has a point, but such honesty would be welcome, especially now. The argument that life begins at conception is at odds not only with history but how we all feel when it comes to miscarriages, which become more far emotionally profound the farther along the pregnancy is. By the same token, abortions past 20 weeks seem different than ones at 13 weeks or below (one reason, surely, why 93 percent of abortions take place by 14 weeks and just 1 percent after 21 weeks). At some point during gestation, the fetus becomes a person with a right to life and liberty, but drawing that line will always be a compromise and imprecise.
The basic framework put in place by Roe a half-century ago (and later amended in Casey), reflected those earlier beliefs by balancing the rights of women and fetuses by granting the state an interest in pregnancy after the first several months. For all the contention that Roe somehow politicized abortion rights, the decision in fact ushered in an era of remarkably consistent beliefs about abortion. As I wrote when Alito's draft was first leaked back in May,
Since Roe was decided, with just 19 percent of Americans agreeing that it should be banned in all circumstances, two percentage points lower than in 1975 when Gallup started asking the question. Eighty percent agree it should be legal in all or some circumstances, which is four percentage points higher than in 1975. That consistency is all the more remarkable when you realize that when Roe was decided, 30 states banned abortion completely and only 20 allowed it under some circumstances.
(Gallup)
Now, in a post-Roe America, any consensus is over. The states that ban abortion will be completely untethered to anything but the most extreme arguments coming from pro-life forces who believe that life begins at conception, which makes it highly likely that some state governments will eventually force their way into every bedroom along with every examination room.
