What Happens After Roe?
Four prominent pro-life leaders on what will happen as the abortion battle moves to the states.
Much discussion has taken place on the airwaves in the past few weeks about the political ramifications of a world without Roe v. Wade. Less discussion has taken place about what comes next, and how the states will adjudicate the issue in both the immediate and the longer term. For the major pro-life groups who currently stand on the cusp of a hard-won victory many thought impossible at the highest court, this represents a major turn of events. They will have to refocus their work from influencing court appointments, judicial decisions, and federal administrative policy to working on state legislators — many of whom have to this point largely ignored the issue.
I reached out to four of the most prominent pro-life leaders on law and policy to hear their opinions in response to two key questions. First: after Roe falls, what does the substance of the legal/legislative pro-life battle look like at the state level?
More than half of abortions in 2020 involved the use of the abortion pill mifepristone, which could be prescribed via telemedicine and sent via the mail across state lines because of Covid — something the FDA made permanent in December. So second: Once the states hash out debates over exceptions and week limits, should pro-life legislators push back on regulatory issues like that?
I thank Kristen Waggoner of ADF, Catherine Glenn Foster of AUL, Penny Nance of CWA, and Roger Severino of The Heritage Foundation for responding. Their perspectives are below.
If the Supreme Court reverses Roe v. Wade, it will be a historic win for unborn children, their mothers, and all Americans. A victory in Dobbs, however, doesn’t mean the end of abortion in America, but marks the beginning of a new phase in Alliance Defending Freedom’s work to affirm life as a human right for all. State legislators would be empowered for the first time in 50 years to fully protect unborn life and support women. Some states will protect unborn babies and promote life. Others will maintain and even expand their money-making abortion regimes. Still others will be somewhere in the middle. And while states will be empowered to protect the unborn, reversing Roe will not by itself shut down the abortion industry’s propaganda machine that tries to convince women and girls to see abortion as their only option. Women and girls need resources—and pro-life pregnancy centers will be needed more than ever. Thankfully, the pro-life community is prepared for this moment with thousands of resource centers dedicated to supporting women and millions of Americans ready to work at the state level to cement life as a human right. ADF will continue to assist legislators, sidewalk counselors, pregnancy resource centers, and state attorney general offices to pass and defend life-affirming laws and to ensure Americans have the right to speak freely about the beauty of human life and the importance of loving our neighbor – both the unborn and the woman in need.
The reversal of Roe will empower not just states, but federal lawmakers and regulators to protect unborn children and to affirm life as a human right for all. Unfortunately, the Biden Administration has already called on “elected officials at all levels of government” to promote abortion. Whether chemical or surgical, abortion takes life and harms women. Any effort by the Biden Administration to bypass the democratic process and reimpose Roe’s regime through administrative action would violation separation of powers principles. Alliance Defending Freedom will vigorously oppose efforts by federal officials to undermine the health and safety of women and unborn children, and to assist state officials whose laws are jeopardized by acts of federal overreach.
States will be able to pass laws to ensure women’s health and safety and uphold the dignity of unborn children at all gestational ages. For the past fifty years, the U.S. Supreme Court has infringed on the democratic process and weakened states’ abilities to pass commonsense laws protecting mothers and unborn children. Unless a state has said otherwise, courts will review these laws under a rational basis standard, which is the most favorable standard for the government.
After Roe falls, there will be a state-by-state battle for human life. There will be different priorities in each state. On one end of the spectrum, some states will protect unborn children from the moment of conception, while on the opposite end, other states will permit abortion throughout a pregnancy. We expect to see to see increased legal challenges, particularly over gestational protections for human life and over the threat of abortion pills to women and, of course, their developing children.
State laws must not only protect life within their borders, but also advance the crucial national conversation that arises from Roe’s reversal concerning the substantive of the human right to life. The human right to life is explicitly recognized by the Universal Declaration of Human Rights and the American Convention on Human Rights explicitly recognizes that the human right to life exists “from the moment of conception”. These international treaties arose from a sense of human rights as rights natural to human persons, and state laws will play an important role in advancing the human right to life nationally by ensuring that Americans cannot look away from the tragedy of abortion violence that our most extreme states are likely to enshrine.
State lawmakers should continue to fight until life is protected throughout the entirety of natural life, starting from the moment of sperm-egg fusion at conception, when science and medicine testify to the fact that a distinct member of the human family comes into existence. Each pro-life victory is a step towards the goal of abortion abolition in our culture, even if the progress is incremental. Legislators should keep pushing until we protect human life at all ages.
The first battle is educating the public and elected officials on the opportunity to restore the respect for the life of every human person, that they are to be treasured and loved. The truth is that Roe imposed an unconstitutional one-size-fits-all federal abortion policy crafted by seven men via heavy-handed judicial fiat that left Americans without a voice.
The Left is trying to imply that reversing Roe will result in a national ban on abortion, but this is incorrect. Dobbs will allow the American people to debate and discuss this issue with more knowledge and understanding thanks to medical advances and enact policies in accordance with the science and their values.
No more one-size-fits-all approach to abortion. State and federal laws are a patchwork of life protections. Federal law prohibits partial-birth abortion. Six states have a court-created right to abortion in their state constitutions. States like Illinois, New York, and Washington declare that abortion is a fundamental right in their state codes. Three states, Colorado, Nevada, and New Jersey have no restrictions on abortion. Sixteen states recognize a right to abortion before viability or at least 20 weeks. The same number of states protect life in the womb at all stages and contain exceptions for cases where the mother’s life is at risk, and in some states contain exceptions for cases of risk of major bodily impairment, rape, or incest.
The bottom line is California and New York will look different than Oklahoma and Florida. This decision lets us finally have the discussion and work towards the laws that reflect our values through the Democratic process. The other side will be fighting for their views and pro-life Americans will be fighting for ours. So, our work is just beginning.
The second battle is ensuring that unborn children and mothers are protected and supported under state and federal law. The pro-life movement believes that in every abortion there are two victims: the mother and the child. The mother should be held harmless under the law for an abortion. The abortionist who performed the illegal abortion should be held accountable.
Further, 90% of countries in the world have laws that protect unborn babies at 15 weeks. America should be a leader—not a follower—when it comes to protecting life. CWA is calling on Congress to fund, through the U.S. Department of Health and Human Services, an online platform that provides all resources available for women and families at the federal and state level. Our goal is for no woman to feel forced into an abortion due to the lack of information on alternatives. There are about 2,700 pregnancy care centers around the nation and 3,000 private adoption agencies. This doesn’t even begin to account for all the public resources available to women. They need an easy one-stop access to all their options, both public and private. Legislation towards that end is forthcoming.
Chemical abortion is dangerous; every “successful” case ends a life. Chemical abortion also endangers the mother. One study found that 7% of women who took the abortion pill required surgery. There have been 24 reported maternal deaths and more than 4,000 adverse events from women who took the pill.
These statistics are horrifying and most troubling is that the abortion takes place at home when a woman may be alone and could have severe complications. The Left wants to portray this as an easy, simple solution to an unwanted pregnancy, but those who have experienced it say it is horrifying and deliberatively deceptive for women.
There are 26 states that regulate the provision of chemical abortion, and more should do so. Regulations encompass basic safety measures, like in-person evaluations by a doctor on whether the procedure is safe for the mother, follow-up appointments, and parental notification requirements in the case of pregnant minors, yet, the pro-abortion lobby will vehemently fight against them (e.g., Iowa).
If a mother is in an unhealthy relationship or is the victim of sex-trafficking or abuse, a chemical abortion may be a means to perpetuate further abuse. Removing in-person oversight further cuts the victim/mother off from rescue opportunities. This is only a part of the picture because full data is unavailable due to FDA Administrator Robert Califf’s weakened reporting requirements that do not demand reporting of non-fatal injury attributable to abortion drugs. Moreover, the Biden Administration’s permanent rollback of FDA guardrails fails to account for the extra expense necessary to enforce postal laws prohibiting mail-order abortion, so there is more responsibility on law enforcement without the means to fulfill that responsibility. Every state law requiring in-person dispensing of abortion drugs is too vulnerable to violation by bad actors.
We are at the cusp of history and legislators must be ready to protect unborn life at both the federal and state levels. States will be debating the entire spectrum of bills, from protections for life at conception, to mandated insurance coverage of abortion up until birth, and everything in between. Once the walls of Roe come tumbling down, pro-life states must immediately dismantle the abortion-on-demand regime and replace it with protections for innocent unborn children and their mothers.
The pro-life movement is committed to protecting unborn life starting at conception, but we recognize that some states will be taking intermediate steps on the way to getting there. Conversely, pro-life legislators in liberal states and in Congress must block radical proposals that would enshrine abortion until birth in law and require institutions and individuals to perform and pay for such abortions, respectively.
There is a clear federal interest in prohibiting the trafficking of poisons used to snuff out the lives of unborn children. Abortion pills are dangerous and have led to women’s hemorrhaging and even death, but the Biden Administration has abandoned its duty to protect women in the name of abortion ideology. Congress should treat these drugs just like we treat heroin, as dangerous toxic substances that are not medicine and contrary to public health.