If Roe Goes, Our State Will Be Worse Than You Think

Sound pretty definitive? It's not, though. The free-speech provisions of the Constitution already protect newspapers in these circumstances, so the court didn't need to make the above determination. Its ruling was essentially what lawyers call a dictum -- meaning that it was just kibitzing, and later courts don't have to pay much attention.

Will the Supreme Court allow a state to prohibit abortion travel? In Bigelow, the court was very anxious to protect its new Roe decision. The seven justices who had voted in favor of Roe were the same ones who protected the newspaper in Bigelow. The losing justices in Bigelow were the same two -- William H. Rehnquist and Byron R. White -- who'd dissented in Roe. But their once-losing position would become the majority position today if a president opposed to abortion appointed a fifth anti-abortion justice. It hardly seems likely that this new majority would feel bound by some kibitzing from the Virginia case.

Moreover, a Supreme Court that reversed Roe could also rule more broadly that the fetus is a person under the Fourteenth Amendment. Such a ruling would be the flip side of Roe, making state support of abortion a constitutional offense. There are barriers to using the Constitution affirmatively to stop abortions nationwide, but such an ambitious ruling would surely encourage the anti-abortion states' most restrictive plans and increase the pressure on Congress to pass a national law restricting abortion. Don't forget that even many Democrats voted in favor of the late-term abortion ban.

Even if the Senate, uncharacteristically, refused to confirm a McCain nominee -- or nominees, if he kept sending up names -- leaving the court at eight justices, women's options would probably erode rapidly. It's easy to imagine the anti-abortion states pushing the envelope with once improbably restrictive laws, such as one requiring clinics to be licensed by the state and prohibiting women from getting abortions in unlicensed clinics, either in- or out-of-state.

If a clinic went to federal court to enjoin such a law, the case would eventually reach one of the 13 federal Courts of Appeal, 11 of which are firmly dominated by Republican appointees and would probably produce a decision either refusing to follow Roe or, more likely, making some transparent distinction between Roe and the new case. In a divided Supreme Court, four justices would probably vote to affirm the lower court, and four to reverse, leaving the appeals court's decision standing. This means that the states that fell within the Circuit in question would come under an anti-abortion umbrella allowing anything up to explicit reversal of Roe.

How would state laws forbidding pregnant women to leave be enforced? The Hope Clinic in Granite City, Ill., is just 10 minutes from the Missouri border. Police from the prohibiting state can just take the license plates of local vehicles at the abortion clinics across the state lines and arrest the women when they re-enter the state. Or a traffic stop can produce a search. Tips from pharmacy workers, disapproving parents or disappointed boyfriends can alert the police to arrest the pregnant woman for intent to seek an abortion out of state. The state law may allow interested parties to seek injunctions to stop her from leaving.

It seems a long way from McCain's bold statement that life begins at conception to police cars waiting on an abortion clinic side street in Granite City. But it's not. If the law were to take this post- Roe course, Americans' lives would be determined by their state citizenship in ways unseen since the Civil War. Professional legal scholars have traced the developments step by step. As constitutional scholar Richard Fallon of Harvard said recently, "If Roe were to go, it would not go gently."

linda@gettoworkmanifesto.com

Linda Hirshman, a lawyer and former professor of law and philosophy, is the author, most recently, of "Get to Work: A Manifesto for Women of the World."