What should happen if abortion returns to the states? An expert explains

If the U.S. Supreme Court tosses Roe v. Wade and Planned Parenthood v. Casey, any bans in effect before the decision should be struck down, an attorney suggests

December 12, 2021 2:39 pm

Pro-choice supporters rally at the Pa. State Capitol on Tuesday, 5/21/19, as part of a national day of action (Capital-Star photo by John L. Micek.) Courtesy of the Pennsylvania Capital-Star.

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, and without a uniform federal statute making abortion the law of the land, regulation of abortion 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, The Chicago Tribune reports.

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 health 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 an op-Ed published Monday by the Legal Intelligencer, an industry trade paper, attorney Howard J. Bashman, an appellate lawyer from Willow Grove, 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 RoeBashman 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.”

Unspoken in Bashman’s piece is the reality that such an action also would turn already contentious legislative, gubernatorial, congressional, and U.S. Senate races into the political 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.

The fight for retiring Republican U.S. Sen. Pat Toomey, R-Pa.’s soon-to-be open seat already is attracting national attention. One of the leading Democratic contenders, Valerie Arkoosh, a physician from Montgomery County, has called on the narrowly divided Senate to vote on a previously approved U.S. House bill that would legalize abortion nationwide.

The kind of action Bashman suggests, in GOP gubernatorial and U.S. Senate fields filled with anti-choice candidates would raise the stakes to thermonuclear levels.

In his op-Ed, however, Bashman, again remaining silent on the political implications of such an action, 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, and their supporters, but it does give them a fighting chance.

(*This column was updated at 2 p.m., on Thursday, 12/9/21 to include additional analysis on abortion rights and electoral politics)

This commentary was originally published by the Pennsylvania Capital-Star, an affiliate of the nonprofit States Newsroom, which includes the Florida Phoenix.

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John Micek
John Micek

A 3-decade veteran of the news business, John L. Micek is the Pennsylvania Capital-Star's Editor-in-Chief. An award-winning political reporter, Micek’s career has taken him from small town meetings and Chicago City Hall to Congress and the Pennsylvania Capitol. His weekly column on U.S. politics is syndicated to 800 newspapers nationwide by Cagle Syndicate. He also contributes commentary and analysis to broadcast outlets in the U.S., Canada and the U.K. Micek’s first novel, “Ordinary Angels,” was released in 2019 by Sunbury Press.