Republicans may soon be the dogs that caught the car.
After years of crusading to overturn Roe v. Wade — a battle motivated sometimes by earnest conviction, sometimes by political expediency and sometimes by both — it looks like they’ve nearly won. The Supreme Court is expected to overturn or undermine Roe this summer, a right-wing victory decades in the making.
What’s next? The hardcore anti-abortion segment of the Republican base doesn’t want a country bifurcated by abortion access in blue states and prohibition in the red ones. Those activists consider abortion to be murder, and will certainly keep pushing for it to be outlawed nationwide.
And even for GOP lawmakers who lack that fire, Roe has served as an incredibly effective electoral carrot for years. Think back to stories of Republicans who held their noses and voted reluctantly for Trump, motivated solely by his (relatively new) anti-abortion stance and promise to appoint Supreme Court justices who would overturn Roe.
So the question is less whether Republicans will find a new boogeyman to fill the Roe void, and more what it’ll be. With abortion rights on the cusp of being rolled back, which individual right will be in the crosshairs next? There’s a chance that it won’t be abortion at all — Republican lawmakers have already started expressing hostility towards same-sex marriage and contraception access, and the anti-LBGTQ activism on the state level has become vicious.
But if it is abortion, there are clues indicating under what banner the next battle will be fought.
The Personhood Bait-And-Switch
“I definitely think outlawing abortion nationwide is round two,” Jessie Hill, associate dean and professor at Case Western Reserve University School of Law, told TPM. “Folks have already been laying the academic groundwork for this.”
Most of that energy has been channeled into the idea of fetal personhood, the theory that a fetus is a person imbued with rights under the 14th Amendment. It’s not a new argument from the right, though it experienced a resurgence last fall with an article published by Notre Dame professor John Finnis in the Catholic journal First Things. It also turned up in some amici briefs supporting Mississippi in the 15-week abortion ban case Dobbs v. Jackson Women’s Health Organization.
“It used to be an absolutely fringe view, but we’re starting to see it gain wider and wider acceptance,” Hill added. “If fetuses are persons under the 14th Amendment, not only is abortion not constitutionally protected, but it is forbidden by the Constitution.”
This argument is a bait and switch from the conventional right-wing line on abortion: that the Constitution is silent about it, so it should be left to the states to decide. Justice Brett Kavanaugh seemed to endorse that view during oral arguments in the Dobbs case.
But the work to make the transition has been underway for years. Anti-abortion activists favor language of elision like referring to fetuses as “unborn children,” and some hold funerals and “naming ceremonies” after terminated pregnancies.
Women have already long been criminalized for even unintentional pregnancy loss, and several states’ laws banning fetal homicide — most applied to protect pregnant women from violence — do not include maternal exemptions for current pregnancies.
We lack evidence indicating how amenable most of the current Supreme Court Justices would be to a personhood under the 14th Amendment argument. Justice Clarence Thomas gave a small clue in his concurrence in a 2019 abortion case, where he cited a belief that abortion was being used as “race genocide.”
In the most extreme scenario, if the Court was so inclined, it could unilaterally accept the personhood argument as part of its likely coming overturning of Roe. The Court concluded in deciding Roe that a fetus is not a person under the Constitution.
“The Court could say that they got that wrong too,” Carol Sanger, a Columbia University Law School professor, told TPM. “That enough has changed in our culture and society that a fetus could be recognized as a person.”
Alternative Avenues
While personhood is the primary avenue those on the right wing are paving to a nationwide prohibition, there is also an even fringier idea being developed by Jonathan Mitchell, the former Texas solicitor general who crafted S.B. 8, the bounty-hunter style abortion ban meant to evade judicial review.
He contends that pre-Roe abortion bans that, in many states, remain on the books can be retroactively applied even while they were enjoined for 50, sometimes 100 years.
Mitchell and his allies, like former Trump aide Stephen Miller’s America First Legal Foundation, have been using the theory in their attempts to go after groups that provide funding for women to get abortions.
“It is also a criminal offense in Texas to ‘furnish the means for procuring an abortion knowing the purpose intended’ unless the mother’s life is in danger, and anyone convicted of paying for another’s abortion faces two to five years imprisonment for each abortion that they funded,” the Foundation wrote in a press release upon its attempt to depose leaders of the Lilith Fund for Reproductive Equity and the Texas Equal Access Fund. The quote is from a pre-Roe criminal statute.
There is a real legal question over whether those old laws automatically spring back to life when Roe is overturned, and some blue states are preemptively repealing them just in case. Letting them be retroactively applied to abortions that happened while they were enjoined, though, could open people up to prosecution even in relatively blue states.
Still, experts don’t think Mitchell’s idea passes the smell test.
“The prevailing view is that it would violate the basic notion of due process to say you could be liable under a law that was enjoined,” David Cohen, professor at Drexel University’s Thomas R. Kline law school, told TPM.
There’s a chance that the first opportunity the anti-abortion contingent gets to ban the procedure nationwide comes from the legislature, not the courts. A Republican president and Congress would likely come under intense pressure from segments of the movement to pass a comprehensive ban.
Their willingness to do so would depend heavily on what happens this summer. If backlash against the expected overturning of Roe is significant and sustained, with ramifications for Republicans in the midterms, they’ll be hesitant to again awaken Democratic resistance.
To the extent that conservative justices on the Court now care about Republican political fortunes, they’ve already proved willing to take that risk. With such a weighty majority, they have leeway on which cases to hear and when. Court watchers were already stunned that they got involved with Texas’ S.B. 8, playing their hand on abortion even before the Mississippi case.
Now, they’ll likely be releasing an opinion to rewind reproductive rights by half a century just months before the midterms.
“It was a surprise to a lot of people that the Court took up this direct attack on Roe in an even-numbered year,” Cohen said. “But they might be thinking, this is the time to do it. If you wait five to 10 years to do it slowly, who knows what the composition of the Court will be? You gotta do it now while you have the votes.”
