Now that Roe v. Wade has been dropped, anti-abortion anti-abortion nationwide is taking a multi-pronged approach in their quest to end abortion, targeting their strategies for each state’s dynamism as they seek to enact new laws and fight in the courts. Trying to avoid sanctions.
An anti-abortion group has proposed a model law that would ban all abortions in addition to preventing the death of a pregnant woman. New legal limits could include prosecuting doctors who defy restrictions, and access to drug abortions already underway. Others expect more conservatives to be elected in November to advance an anti-abortion agenda.
“For Republicans, the post-Roe world will be vastly different from a legal standpoint,” said George Washington University Law School professor Jonathan Turley. “For the past 50 years, Republicans have been taking offense by cutting the edges of the row. Now they’ll play defense in all 50 states.
The US Supreme Court’s decision to overturn Roe v. Wade held that abortion is not a right under the Constitution, creating an opportunity for states to put more restrictions on the books. Recently, lawmakers in West Virginia and Indiana have pushed for new restrictions, with varying success.
James Bop Jr., general counsel for the National Right to Life, has worked out model legislation for states, but said in session with some legislatures “the process of adopting the new laws is really just beginning.”
It recommends a ban on all abortions except to prevent the death of a pregnant woman, although it provides language for states that want to make exceptions in cases of rape or incest. It recommends criminal punishment for anyone, including a doctor, who knowingly or knowingly causes or aids in “unlawful abortion”.
The model law will not criminalize a woman who has an abortion.
A memo involving model language suggests that anyone who aids and abets or conspires for “unlawful abortion” may also be prosecuted, including abortion deemed illegal under the law. Instructions on whether to self-administer or to have an abortion are also included. The person needs to know that the woman is seeking an abortion and will knowingly help her to have an abortion.
“Providing general information is protected by the First Amendment,” Bopp said.
It also contains language that allows prosecuting a person—other than a pharmacist or drug manufacturer—who knows that a woman plans to use an abortion-inducing drug to cause an illegal abortion, and Willfully distributes medicine or advertises such medicine for sale.
But in the meantime, Bop said anti-abortionists are looking to November, when they hope to elect anti-abortion candidates who will enforce such laws.
With that goal in mind, many conservatives are taking a “cautious pause” on the issue of abortion, according to Larry Jacobs, a professor of politics at the University of Minnesota.
“Republicans have a better chance of winning competitive races across the country talking about inflation, crime and Joe Biden,” Jacobs said. “When they’re talking about abortion, they’re doing Democrats a favor.”
Conservatives also see a new court battle on the horizon.
Former Texas Solicitor General Jonathan Mitchell, now a private practice attorney, came up with some key components of a Texas law that bans abortion after fetal heart activity is detected. His innovation was to make violations enforceable through lawsuits filed by citizens instead of the government.
Mitchell, who represents Texas and South Dakota in abortion lawsuits and has helped lawmakers in several states develop abortion bans and bans, said future legal fights may center around those in those states. The occupants pay for abortions that are not being enforced by court orders.
“Abortion is still a criminal offense in every state with a trigger law or ex-roe ban, even if a state-court injunction is in force,” Mitchell said in an email to the Associated Press. He said that an injunction does not actually block a law, as many believe, but temporarily blocks it from being enforced.
He said employers or those who help fund abortions in states such as Utah, Kentucky, Louisiana or West Virginia are violating the law and could be prosecuted. She added that if restrictions exist but are on hold, abortion providers could be prosecuted retrospectively.
“And the mere risk of potential lawsuits may be enough to deter abortion providers from offering abortions to out-of-state residents, especially when these lawsuits may be brought,” they wrote, “not only against physicians but Everyone else is involved.”
Melissa Murray, a professor at the New York University School of Law, said the question of whether those paying for abortions out-of-state could be charged has “unknown grounds.” Employers and the fund can argue that they are exercising their free speech rights, she said in an email. “That said, a state can argue that (groups) are facilitating a criminal law violation – essentially, they are acting as accomplices.”
Fear of prosecution has already won for enemies of abortion; Some clinics closed in a state of confusion, reopened, then closed again. This caused doctors to withhold emergency treatment until it was clear that a fetus had died or that a woman’s life was at stake.
Erin Hawley, an attorney for the Conservative Alliance Defending Freedom and the wife of Republican U.S. Sen. Josh Hawley of Missouri, expects to continue litigation over drug abortion.
She pointed to an ongoing court battle in Mississippi, where drugmaker GenBioPro is suing the state over its provisions that make it harder to obtain a prescription for mifepristone, a drug that can induce abortion. State policies are in contrast to US Food and Drug Administration regulations, which courts have generally given precedence over state law.
But Hawley said that might not apply here.
“It’s always a big deal for a federal agency or law to trample on state law,” Hawley said.
Some states are taking different approaches.
In Louisiana, the State Bond Commission last week voted to withhold a $39 million line of credit for the New Orleans sewer and water project to “send a message” after city and local officials said they would not allow abortions in that state. will not enforce the ban. The law is currently blocked by a court and is not enforceable anyway.
Texas sued the federal government in mid-July after the Biden administration issued guidance that said hospitals are required to provide abortions when necessary to save a mother’s life.
Next week, Kansas voters will consider the first statewide referendum on abortion since the row was overturned. If approved, it could make Kansas the fifth state to declare that its constitution does not grant abortion rights and would open the door for the Legislature to further restrict or prohibit abortion.
Bopp said that while court battles and midterm elections are the current focus, anti-abortion anti-abortion would eventually like to see federal and state constitutional amendments that would explicitly protect the unborn, though he acknowledged that would be a challenge.
“A constitutional amendment has been one of our goals. But it needs consensus,” he said.
Get AP’s full coverage of the Rowe vs. Wade flip here: