The Abortion States of America
By Dr Paul Kengor
PA
Editor’s note: An early version of this article first appeared in Crisis Magazine last October.
Roe v. Wade and so-called “abortion rights” are facing challenges unlike any time before. The chances of abortion being sent back to the states are higher than ever. As that prospect looms, pro-lifers are being treated to a tragic spectacle: “pro-choice” leaders nationwide are stepping forward to do everything within their power to protect unrestricted abortion.
Leading the charge at the state-level are the likes of New York’s new pro-choice governor, Kathy Hochul, who succeeded New York’s old pro-choice governor, Andrew Cuomo, and Governor Gavin Newsom of California.
Hochul and Newsom stand as poster-girl and poster-boy for this new abortion front. Vigorously supported by an activist pro-choice president, Joe Biden, they are battling the Texas effort and any others seeking to limit abortions to the time of the unborn child’s heartbeat. The Texas action outraged Joe Biden, who promised to throw the “whole of government” against the Texas bill, enlisting his “best lawyers” at the Department of Justice and at Health and Human Services. The Texas action infuriated Governors Hochul and Newsom, who have responded by offering their states as destination centers for women of Texas and elsewhere to come for abortions.
“Abortion access is safe in New York,” Hochul ensured , “the rights of those who are seeking abortion services will always be protected here. To the women of Texas, I want to say I am with you. Lady Liberty is here to welcome you with open arms.” She vows: “We will help you find a way to New York and we are right now looking intensely to find what resources we can bring to the table to help you have safe transport here and let you know there are providers who will assist you.”
The New York governor was careful to include “birthing persons” in her invitation: “I am proud that New York is leading the fight to ensure that every woman and birthing person has access to abortion care.”
As for Gavin Newsom, he vows to make California a “reproductive freedom state.” “These are dark days,” says Newsom, “I don’t think one can understate the consequential nature of the moment that we are living in. It becomes of outsized importance that California assert itself.”
What’s happening with states like California and New York is something that many of us have long expected, namely: if Roe v. Wade is reversed or curtailed by the US Supreme Court—as it should be, given that Roe from the outset was a constitutional absurdity—abortion will be turned over to the states.
This is not the place to take a deep dive into the obvious unconstitutionality of Roe v. Wade, but I’ll offer just a few lines:
Roe was creatively albeit absurdly based on a “right” to an abortion invented and extended from a so-called “ penumbra ” or “shadow” of a “right to privacy” lurking somewhere in the arcane recesses of the Constitution. In fact, neither abortion nor even the word “privacy” is mentioned in the Constitution— no, not one time —even as the rights and protection of “life” is mentioned three times (in the Fifth and Fourteenth Amendments).
Yes, shocking but true.
One can certainly argue that when the framers mentioned life, they were not thinking of abortion. No doubt that is correct. But still, a pro-lifer looking for a right to “life” in the Constitution clearly has a little more to grab on to than a pro-choicer looking for a right to abortion or even “privacy.”
Roe v. Wade is a legal abomination that any sane jurist not poisoned by ideology would concede is utterly without foundation in the US Constitution. The legal “logic” behind Roe is such a farce than one ought to fall over laughing at it, if not for the fact that it was tragically employed to make possible the legal termination of over 60 million unborn babies since 1973.
The reality is that the Constitution is silent on abortion, which is why the federal government should never have enshrined it. It should have been left to the states.
This was something that Judge Robert Bork tried to explain to Senators Joe Biden and Ted Kennedy and feminists and liberals everywhere over 30 years ago, and for which Bork was called everything from a misogynist to a gargoyle. But there’s a very good chance that’s exactly where we’re now headed.
If so, what will happen to abortion in America? Well, some states will embrace it far and above others. Which states? The answer is pretty simple and predictable: Go to political maps of presidential elections and look at the so-called blue states vs. red states; that is, Democrat states vs. Republican states. The firmly Democrat states, especially on the West Coast and northeast, from the very left-wing Oregon to the monolithically liberal Massachusetts, will become America’s Abortion States. They will roll out the red carpet. (So will the District of Columbia, where Attorney General Karl Racine issued a press announcement welcoming abortion-seekers to DC. “In the District we value reproductive rights,” says Racine , “and we are open for care to those who live here and those traveling from other states.”)
A telling piece published at CNN.com cites a report by the Guttmacher Institute estimating that if the high court overturns Roe, 26 states “are certain or likely to ban abortion almost immediately.”
That brings us back to New York and California, which will fly the Roe flag as premier destination centers for abortion.
Franciscan University Professor Anne Hendershott recently wrote an excellent piece titled, “ The Return of Abortion Tourism ,” where she noted: “ we are already witnessing the return of the pre- Roe era of ‘abortion tourism.’” She writes of Kathy Hochul’s New York:
It is likely that once again—as in the early 1970s—New York City will be the deadly destination of choice for women seeking abortion outside of their home states….
Promising to provide “safe passage” for women, Hochul is resurrecting the very lucrative pre- Roe abortion tourism for abortion seekers from all over the country. Replete with abortion packages including airfare, limo rides from New York City’s airports to abortion facilities, pre-and post-abortion hotel stays, and surgical services….
Abortion tourism emerged in 1970, during the years prior to Roe v. Wade, when New York State repealed all laws criminalizing abortion. By 1972 , more than 100,000 women traveled to New York City for abortions; more than half of them traveled more than 500 miles from their home states to terminate the lives of their unborn children. New York quickly became the national destination of choice for abortion.
Hendershott underscores the “financial windfall” that this will provide to abortion providers in states like New York: “The financial benefits to the abortion industry—and to their pro-abortion politician enablers—in New York State will be tremendous.”
This process has already begun. The governors of New York and California are eager and excited about the abortion possibilities for their citizens.
To that end, one wonders how the emergence of these Abortion States will affect pro-life residents of those states. Could some be so appalled as to feel compelled to relocate to other states? Could they in good conscience support this outrage with their tax dollars?
Either way, that is where we seem to be headed: the Abortion States of America. A beauty of federalism is that you need not live in one of them.
(Dr Paul Kengor is professor of political science and chief academic fellow of the Institute for Faith and Freedom at Grove City College)
