It's not just up to the states
I've written before about a dangerous myth regarding abortion - namely, the belief that in the event of a Supreme Court decision overturning Roe v. Wade, the legality of abortion would revert to state legislatures. But the myth refuses to die, even among liberals. It seems to be an assumed premise in an article in The Nation by Katha Pollitt entitled "Is it time for Roe vs. Wade to go away?":
...if the Supreme Court overturned Roe, abortion would not be off the table at all. It would be front and center in 50 state legislatures.I can't emphasize enough how dangerous this mistaken way of thinking is. I feel cynical saying this, but I have a feeling that if people in blue states believe, erroneously, that overturning Roe would simply leave the abortion issue "up to the states," they won't be overly concerned about its demise, thinking that the effect would only be felt in figuratively far-off states like Alabama and Mississippi (one abortion clinic?!?).
According to "What If Roe Fell: The State-by-State Consequences of Overturning Roe v. Wade," a report published last fall by the Center for Reproductive Rights, abortion rights would be at immediate high risk in 21 states, moderate risk in 9 and "secure" in only 20.
Short of a takeover by the Taliban, it's hard to imagine abortion being banned outright in New York, California or Connecticut. But it is equally hard to imagine liberal abortion laws passing in the Deep South, Utah or South Dakota. And when you consider that Florida, Tennessee, Minnesota and West Virginia are listed as "secure" -- all states that have seen recent anti- choice victories and increasing Republican strength -- you can see how volatile the abortion map could quickly become.
...Even in pro-choice states, they might be able to win spousal notification requirements, bans on "partial birth" abortions or even on all second- trimester procedures except to preserve the mother's life and health.
A national consensus on abortion might or might not develop over time, but any such agreement would not likely be as permissive as Roe. Meanwhile -- and possibly permanently -- fortunate women in anti-choice states would fly to New York or Los Angeles or Chicago, and the less lucky -- the poor, the young, the trapped -- would have dangerous, illegal procedures or unwanted children. It would be a repeat of 1970-73, when women who could get to New York -- but only they -- could have a safe, legal version of the operation that was killing and maiming their poorer sisters back home.
The blatant class and racial unfairness of this disparity, in fact, was one of the arguments that pushed the court to declare abortion a constitutional right. If Roe goes, that same disparity will reappear, relabeled as local democracy. And I'm not persuaded that the right to abortion will ever be the norm in, say, the South, where the religious right is strong, anti-abortion sentiment is high and the political culture is inbred and hostile to women. Even now, there's only one abortion clinic in Mississippi, and the promised pro-choice masses -- the "regular old adult middle-class women" -- have yet to arise.
Legislative control might be more "democratic" -- if you believe that a state senator balancing women's health against a highway for his district represents democracy.
Right now, blanket bans on abortion are out of the question because of Roe. Without Roe, there is nothing preventing Congress from making abortion a crime nationwide. Whether Congress is likely to do this or not is another question - I would argue that they are, given the strong GOP majorities in both houses. But what needs to be understood is that the Republicans in Congress (and their pro-criminalization allies in the Democratic Party) have the power to do so if they wish.