Did I hallucinate that Kavanaugh concurrence in the Dobbs case?
Hold on, let me check.
Nope, there it is in black and white:
It’s extraordinary for a justice to pre-judge legal questions that aren’t yet before the Court, but Dobbs was an extraordinary ruling. Kavanaugh is obviously worried about Republican legislatures abusing their new power to regulate abortion and causing legal chaos. So he fired a warning shot across the bow: You can’t stop women from seeking abortions in blue states.
We’ll see how much he appreciates red states flipping him the bird in response.
Several national antiabortion groups and their allies in Republican-led state legislatures are advancing plans to stop people in states where abortion is banned from seeking the procedure elsewhere, according to people involved in the discussions…
The National Association of Christian Lawmakers, an antiabortion organization led by Republican state legislators, has begun working with the authors of the Texas abortion ban to explore model legislation that would restrict people from crossing state lines for abortions, said Texas state representative Tom Oliverson (R), the charter chair of the group’s national legislative council.
“Just because you jump across a state line doesn’t mean your home state doesn’t have jurisdiction,” said Peter Breen, vice president and senior counsel for the Thomas More Society. “It’s not a free abortion card when you drive across the state line.”
The head of the NACL compared it to human trafficking: “Why is there a pass on people trafficking women in order to make money off of aborting their babies?”
Which women are being coerced into traveling across state lines for abortions instead of doing so of their own volition?
Instead of trying to bar women from traveling interstate in direct defiance of Kavanaugh’s admonition, some red states are choosing a more clever option. They’re following the lead of the novel statute Texas passed last year that created private civil actions against abortion providers who terminate a pregnancy after six weeks. Deputizing private citizens to deter abortions was the state’s way of creating standing problems in court for pro-choicers who wanted to challenge the law. Red states are now looking to that as a model for how to prevent pregnant women from obtaining abortions in blue states. They can’t be prevented from traveling across state lines — but what if a red state were to create civil liability for any blue-state doctor who performs an abortion on a red-state woman after she arrives? How many blue-state doctors would be willing to carry out a procedure on a woman from Texas, say, knowing that they might soon be sued successfully in Texas for tens of thousands of dollars?
You can’t stop women in red states from traveling but you can potentially make it so that every doctor in America will think twice about assisting them in an abortion. Which, as one Connecticut legislator told WaPo, sounds suspiciously like red states trying to assert authority over blue ones, punishing activity in jurisdictions where that activity is perfectly legal. For 50 years, pro-lifers insisted that the end of Roe would mean a return to the glories of federalism. We’re less than a week removed from that outcome, however, and already there’s movement towards imposing a de facto national ban through the back door, via a “private lawsuit” gimmick.
My guess is that Kavanaugh will look dimly on red states trying to deter out-of-state abortions by penalizing providers who operate lawfully in those states. Civil suits against abortion providers may not directly infringe a pregnant woman’s right to travel, but if you can use the threat of legal action to prevent your own state’s residents from accessing services they covet when they visit other states, you’re certainly burdening that right. If Gavin Newsom and the California legislature tried to cut off tourism to Florida by authorizing residents to sue any Florida business for a billion dollars if they serve a tourist from California, would that be fair? Would that law stand up? If not, why not?
If the answer is, “Yes, it stands up, and Florida can pass its own law in retaliation,” okay, but that’ll be quite a path we’re on as a country, with states in open “lawfare” against each other. We’re already there, in fact, as Connecticut and other blue states are moving to pass laws that would prevent pro-life litigants in red states from being able to access records of abortion providers in blue ones as part of discovery in any civil suit they might file. “This, our current reality, will lead to conflict and litigation between states,” writes law professor Daniel Conkle of the post-Roe landscape, urging some sort of federal compromise to keep the peace. “Corporations will be pushed to take sides, adding to the politicization of commerce. Partisan polarization will be exacerbated, and the risk of abortion-related violence will grow. Our precarious social fabric will be torn apart, further imperiling our already weakened sense of commonality and nationhood.”
It’s not just state-versus-state either. In many states, it’s county-versus-county, with district attorneys in blue counties vowing not to enforce any new abortion bans while bans are in full effect in the red counties next door. In Texas, at least one Republican legislator wants to empower rural red-county prosecutors to charge blue-county abortion providers if their local DA refuses.
We’ve moved in a week from a brisk trot on the path to disunion to a full gallop. Which, for some people, is a feature rather than a bug:
[Josh Hawley] predicted that people will base where they live on whether abortion is allowed and that the decision will end up redrawing demographic lines across the country.
“I would predict that the effect is going to be that more and more red states are going to become more red, purple states are going to become red and the blue states are going to get a lot bluer,” Hawley said. “And I would look for Republicans as a result of this to extend their strength in the Electoral College. And that’s very good news.”
That is indeed probably a submerged rationale for the nascent red-state laws authorizing lawsuits against out-of-state abortion providers. If you’re a woman who currently lives in a Republican state and you’re worried about being able to get an abortion in the future, you have one option: Move. Let the pro-choicers flow from red and purple states into blue ones, consolidating Democratic votes in jurisdictions where Democratic electoral victories are already a foregone conclusion. What Hawley’s imagining is an acceleration of “The Big Sort,” in which Americans of different political and cultural beliefs increasingly segregate themselves from each other geographically, making partisan divisions worse and fostering the sense that the country has actually become two countries in practice. The end of Dobbs is likely to turbo-charge that phenomenon. Only a psycho would delight in American politics turning more bitter and fractious, but Hawley is very much a man of his party these days: Anything for power.
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