It’s Dobbs day! How has the picture changed over the past year?
The first phase, which focused on state legislatures and a few referenda, is essentially over. There were a few surprises, but by and large we got what we expected; the red states have enacted strict new legislation, and the blue states have taken steps to further protect abortion rights. So what’s next?
The red team will do its best to impose its will on the blue states. This will manifest itself in three ways:
- FEDERAL LEGISLATION: The House GOP leadership is apparently processing a 15 week national ban in spite of polls saying this is suicide in swing districts. The legislation obviously isn’t going anywhere in the Senate until 2025. If the GOP sweeps the 2024 election, there will be enormous pressure put on McConnell to abolish the filibuster. My guess is that he will ultimately give way, if it comes to that.
- FETAL PERSONHOOD: The ideal solution, for the anti-abortion crowd, is a Supreme Court decision finding that fetuses are entitled to protection under the Fourteenth Amendment. That won’t happen with the existing Court, but it might in the future, particularly if DeSantis wins the election.
- EXTRATERRITORIALITY: You can anticipate lots of efforts by red states to control pro-abortion actions by residents in blue states. Will they succeed? The concurring opinions in Dobbs suggest not, but we don’t really know yet.