The Problem of Different States’ Abortion Laws

The Problem of Different States’ Abortion Laws July 8, 2022


We pro-lifers are right to celebrate the Supreme Court’s decision in Dobbs vs. Jackson Women’s Health, which overturned Roe v. Wade.  Instead of positing a constitutional right to abortion that cannot be found in the constitution, the court returned jurisdiction in that contentious issue to the states.

That is as it should be, but we shouldn’t underestimate the difficulties this is going to cause.  In states where abortion will be illegal, some will prosecute the doctors who perform the operation, while others may prosecute the woman who procures one.  Woke corporations are threatening to move out of pro-life states and are already offering to pay the expenses of employees so they can go to pro-abortion states to get their operation.  Pro-life states may well make that a crime.

Ken Dilanian writes about the looming legal conflicts between states, comparing it to the days before the Civil War when states often did not recognize each other’s laws and invoking an important principle of federalism:  “comity.”

Experts say it is conceivable that a person could be wanted for a felony in an anti-abortion rights state but protected from extradition in a pro-abortion rights state. The governor of Massachusetts has already imposed rules forbidding state officers from cooperating in abortion investigations. California’s governor signed a bill seeking to protect from civil liability anyone providing, aiding or receiving abortion care in the state. Texas law, however, lets private citizens sue out-of-state abortion providers, and Missouri is considering a similar law.

“What we had in the years leading up to the Civil War was a failure of what lawyers call comity, the idea that states will respect other states’ laws” for reasons of courtesy, consideration and mutual respect, said Ariela J. Gross, a professor of law and history at the University of Southern California Gould School of Law.

But there will also be problems within states.  Whatever the state legislatures decide and no matter how popular that decision may be in the particular state, pro-life citizens will object to permissive abortion laws, and pro-abortion citizens will object to pro-life laws.  Jack Wolfsohn sees the possibility of a “national realignment,” in which Americans will move en masse to states–or countries–that share their position on abortion:

It is possible that the overturning of Roe v. Wade could bring about waves of migration within and possibly from the U.S. Americans may move to states with like-minded people and leaders who share their values. This is not necessarily bad. It is the natural consequence of an increasingly polarized nation, and it may be the only solution that will keep Americans coexisting peacefully in the same country.

Responding to the prospect of such a legal and national mess, Indiana University law professor Daniel Conkle says that there will have to be a federal abortion law that applies to all of the states.  But it can’t just be “legalize it completely,” as the Democrats are pushing for now, since subsequent legislative majorities can just reverse that law, just as “ban it completely” can also be reversed.  He proposes a “grand compromise” on the issue, one that balances the concerns of both sides and that fairly well corresponds to the general public’s complex views about the issue:

To be potentially viable, a national compromise would include four elements. First, it would permit abortion during a specified period of gestation, without restriction, during the few first months of pregnancy. Second, it would prohibit abortion later in pregnancy. Third, even after this point in pregnancy, there would be exceptions to the abortion prohibition. And fourth, the congressional compromise would be national in scope, with federal law controlling the issue of abortion and preempting state law to the contrary.

He suggests prohibiting abortion after 15 weeks, which was the time-frame specified in the Mississippi law upheld in the Dobbs decision.  His proposed law would also forbid late-term abortions.

But although these restrictions have been promoted by pro-lifers in the context of legal abortion under Roe v. Wade, I can’t imagine us going along with any compromise that would still allow abortion, given our conviction that it amounts to the homicide of a human being.

Or, if faced with the passing of a national abortion law, might it be legitimate for pro-life lawmakers to put in these restrictions and then vote for the bill as a better alternative to unlimited abortion on demand?

I really don’t have any solutions for these problems.  Do you?


Illustration from Open Clipart, Public Domain.


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