June 24, 2022

A FEW MORE THOUGHTS ON DOBBS: First, it’s a big win for the rule of law — by which I mean not so much the opinion as that the justices stood firm in the face of unprecedented threats ranging from Chuck Schumer’s “pay the price” language to mobs and an actual armed assassin showing up at their homes. A Supreme Court that can be bullied is a Supreme Court that will be bullied. Unlike Roberts’ flip in the ObamaCare case, the majority here held firm, which will discourage bullying in the future.

Second, the likely result is that a few states will ban abortion entirely, a few will permit it for the entire term, and for most it’ll look something like Europe, with abortion easy to get for the first 12 weeks or so, and much harder after that. (The Mississippi law in question here, which allows abortion for any reason through the 15th week, was actually more liberal than many, perhaps most, European laws).

States won’t be able to ban interstate travel for the purpose of getting an abortion because interstate travel is a separate constitutional right. Congress will not be able to guarantee a right to abortion because its 14th Amendment power to enforce the rights guaranteed by the 14th Amendment doesn’t apply to abortion, which the Court has found isn’t protected under the 14th Amendment. It will not be able to either protect abortion or ban it under its commerce power because abortion isn’t interstate commerce, and is a traditional subject of state regulation.

It’ll take a few years to shake out, but we’re likely to wind up with what we would have had by 1976 or so if Roe had never been decided — a spectrum of laws around the country that will be adjusted over time based on experience and the views of the electorate. Though, of course, the norm may be stricter than it would have been without Roe, which called into being a huge pro-life movement that probably wouldn’t have existed otherwise.

UPDATE: It’ll be interesting to see if this reduces the flow of immigrants from blue states to red. That’ll be a measure of how much people actually care. To be honest, I kinda hope it does slow the flow.

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