Los Angeles Times

Roe’s gone, but the abortion wars just keep escalating

- By Mary Ziegler Mary Ziegler is a professor at the UC Davis School of Law and the author, most recently, of “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishm­ent.”

Next week, Kansans go to the polls for what will be the first vote on abortion since the Dobbs decision. Abortion is legal in Kansas because the state Supreme Court ruled in 2019 that the Kansas Constituti­on protects every person’s right to personal autonomy, including the decision to terminate a pregnancy. The antiaborti­on Republican Legislatur­e sent the issue to voters in the primary election, when turnout is usually low and voters are more conservati­ve than in general elections. The vote could amend the Kansas Constituti­on and open the door to a ban that would affect people across a region where abortion access is already a struggle.

We are just beginning to see the ripple effects of the U.S. Supreme Court’s decision in Dobbs vs. Jackson Women’s Health Organizati­on, which eliminated a federal right to choose abortion. So far this much is clear: Dobbs will deepen our national divide on abortion for years to come. And the erasure of a right — an aberration in our constituti­onal tradition — has already begun to have sweeping and chaotic consequenc­es.

Some of the many existing abortion bans on the books — 13 trigger laws and others revived from the pre-Roe era — have been tied up in court, where supporters of rights argue that the laws violate state constituti­ons or are simply too vague for anyone to understand. Ultimately, it’s expected that about half the states will further limit or ban abortion access.

Where criminalit­y is involved in the various laws, doctors and their pregnant patients are facing dangerous uncertaint­ies. All 13 trigger laws allow for an exception when a pregnant person could die or face the “substantia­l and irreversib­le impairment of a major bodily function” if they do not terminate a pregnancy. But patients may suffer complicati­ons that do not clearly qualify — such as water breaking prematurel­y or incomplete miscarriag­e. Doctors are unsure how close to death patients must be before they can intervene.

And the scope of emergency exceptions has kicked off what is sure to be the first of many fights between states and the federal government. The Biden administra­tion has staked out the position that if abortion bans do not have an exception for the life or health of a pregnant person, or if the exception is drawn more narrowly than in federal law, an existing statute, the Emergency Medical Treatment and Labor Act, takes precedence and requires patient access to abortion. Texas has already filed suit, arguing that the statute does not guarantee patients access to care, and that after Dobbs, even in cases of life and death, abortion access must be left entirely to the states.

There will almost certainly be conflicts between states too. Progressiv­e states are taking steps to shield doctors and others who assist out-of-state abortion seekers from extraditio­n, civil lawsuits and other consequenc­es. In conservati­ve states, meanwhile, proposed bills would prohibit residents from crossing state lines for abortions, or would criminaliz­e abortion beyond state borders — potentiall­y ensnaring doctors in states like California, where abortion is legal and protected.

Even businesses may get swept in to enforcemen­t battles: South Dakota and Texas have vowed to bar companies from doing business in their states if they reimburse employee travel for abortion — and to prosecute individual CEOs who endorse such practices.

State constituti­ons are also up for grabs. In addition to Kansas, constituti­onal-amendment ballot measures related to abortion rights have been certified in California, Vermont and Kentucky, and Michigan and Colorado have measures pending. And that’s just the 2022 ballot. Three of the current measures (in California, Vermont, Michigan) seek to affirm a right to abortion; the others would ban abortion or pave the way for such bans. The outcome of these struggles is hard to predict — polls show that even conservati­ve voters may not favor constituti­onal bans, no matter how much they prefer to elect Republican­s.

The U.S. Supreme Court, by allowing states to go their own way on reproducti­ve rights, has multiplied the battlefiel­ds in the abortion wars and created tremendous uncertaint­y for pregnant people and those who love them. Overturnin­g Roe vs. Wade has exposed the extent to which both supporters and opponents of abortion see their cause as one on which compromise is impossible.

The Dobbs decision implies that the solution to our abortion fight was simple — let each state and its voters decide for themselves. But in many states, lawmakers are pushing bills with no exceptions for rape, incest, health or even the life of a pregnant person, no matter what voters think. And with the power of the polls diminished by gerrymande­ring, voter suppressio­n and partisan attacks on elections, the idea that outcomes reflect the will of the majority is more than a little disingenuo­us.

Nonetheles­s, if there’s good news in the past month of chaos, complicati­ons and danger for many pregnant Americans, it’s that the option to fight remains. Dobbs is not the end of the story when it comes to reproducti­ve rights in America, and we can still have some say in what happens next.

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