Here's What Abortion Laws in a Post-Roe World Might Look Like
A pro-life group's model legislation hints at how extreme enforcing abortion bans could get.
Model legislation from the anti-abortion group National Right to Life provides a sobering look at where some prominent pro-lifers think U.S. laws should go.
The group's vision includes a sweeping criminal enforcement apparatus targeted at people who perform abortions and entities that enable them, including website purveyors, web hosting companies, and anyone else providing abortion information.
"Police state. Very much police state. Not even subtle about it," Thomas Lecaque, a history professor at Grand View University, commented on Twitter. "I mean seriously. Full blown surveillance state stuff."
Model legislation is just a policy wish list, of course. But anti-abortion groups have a good track record of getting model bills proposed and enacted. And James Bopp, general counsel for National Right to Life, told CNN that the group would aggressively push its model laws across the U.S.
To begin with, the group's new model legislation would ban abortion from fertilization, with the only exceptions being when a pregnant woman's life is jeopardized.
Performing an abortion would be criminalized, of course, as would "conspiring to cause, or aiding or abetting, illegal abortions"—activity which the group would define very broadly.
Aiding and abetting an abortion would "include, but not be limited to: (1) giving instructions over the telephone, the internet, or any other medium of communication regarding self-administered abortions or means to obtain an illegal abortion; (3) hosting or maintaining a website, or providing internet service, that encourages or facilitates efforts to obtain an illegal abortion; (4) offering or providing illegal 'abortion doula' services; and (5) providing referrals to an illegal abortion provider," explains National Right to Life.
Criminalizing such things would obviously raise some First Amendment concerns.
National Right to Life also wants new criminal laws against helping a minor obtain an abortion and against "trafficking in abortifacients." In addition, it would be a felony to use telemedicine "to prescribe, sell, or distribute an abortifacient."
Stopping drug-induced abortions—also referred to as medical abortion, medication abortion, or chemical abortion—is going to be a big focus of pro-life groups going forward. "Chemical abortion is the fight we're going to be having for the next decade, probably longer," Jennifer Popik, National Right to Life's federal legislation director, told attendees at the group's convention earlier this month. (Meanwhile, Attorney General Merrick Garland says Food and Drug Administration approval of such drugs may mean that states cannot ban them.)
To enforce these new abortion laws, the group wants state attorneys general—not just local district attorneys—to be given prosecutor authority. This is in case some local prosecutors refuse to enforce a state's abortion prohibitions—as is already happening in Texas and elsewhere.
National Right to Life also urges governments to rely on not just criminal penalties but also civil penalties and licensing rules. "Traditionally, abortion laws relied on criminal enforcement to make pro-life laws effective in protecting unborn life. However, current realities require a much more robust enforcement regime than reliance on criminal penalties," states an introduction to the model legislation.
If National Right to Life's legislation passed, state and local governments, as well as relatives of women who receive abortions, would be able to bring civil lawsuits against any person or entity "that violates any provision of the abortion law." Winners of such suits would be entitled to damages and to stop the provider from further action.
In addition, "wrongful death of an unborn child" suits could be brought by "the woman upon whom an illegal abortion has been performed, the father of the unborn child, and the parents of a minor."
The model legislation also proposes Racketeer Influenced and Corrupt Organizations (RICO)–style statues, which could bring enhanced penalties for anyone found to be part of an illegal abortion enterprise.
Some activists are already getting excited about the chance to "use RICO to punish the docs," as Florida Family Policy Council's John Stemberger put it.
Such laws could potentially be used to target far more people than abortion doctors, however. They would be aimed at anyone who "is employed by or associated with an entity known by the person to engage is a pattern of illegal abortion activity" (defined as two or more illegal abortions), anyone who "knowingly or intentionally receives any proceeds" from such activity, anyone who "maintains" property engaged in such activity, and more.
National Right to Life's model legislation doesn't mention birth control, but the fact that it considers abortion to begin at fertilization—not implantation—could be used to go after some forms of contraception. Those opposed to emergency contraception have long complained that it could prevent a fertilized egg from implanting in the uterus. Under National Right to Life's model statutes, this could be considered an abortion.