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How far the GOP might go post-Roe on abortion, contraception and travel

A leaked draft opinion on May 2 shows that the Supreme Court is poised to overturn federal abortion protections. Here's what would happen. (Video: Joshua Carroll/The Washington Post)
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In some ways, we already have an idea of what a post-Roe v. Wade world will look like: Many red states have passed “trigger laws” that will take effect if and when Roe is overturned. And in Texas, whose six-week ban went into effect in 2021, patients have flooded into neighboring states to seek abortions.

But we might not know the half of it yet.

Many states would ban abortion, of course, but how that is implemented would vary. And some might go significantly further: Proposals include criminalizing abortions (possibly even for the patient), eliminating exceptions for rape and incest, prohibiting traveling to other states for abortions and possibly even outlawing certain forms of contraception.

Below is a look at where things stand on these fronts.

Eliminating exceptions

Several states have recently passed trigger bans that make no exceptions in the cases of rape or incest. (And several GOP senators recently punted on whether they support them, citing the lack of a final word from the Supreme Court on Roe.)

A number of high-profile Republican candidates have explicitly come out against these exceptions — a position at odds with about 8 in 10 Americans and with where the GOP has stood in recent decades. A few candidates even oppose life-of-the-mother exceptions.

Mississippi Gov. Tate Reeves (R) was pressed this weekend on his state not making exceptions for incest, and he suggested the issue could be revisited.

“When you look at the number of those that actually involve incest, it’s less than 1 percent,” Reeves told CNN’s Jake Tapper. “And if we need to have that conversation in the future about potential exceptions in the trigger law, we can certainly do that.”

Criminalizing abortion — including for patients

Another proposal (and another area where Republicans previously treaded lightly) is to criminalize abortion — that is, to attach significant criminal penalties to deter people from violating a state’s ban.

Trigger laws in Arkansas, Kentucky, Missouri, North Dakota, Tennessee and Utah would make providing an abortion a felony. Idaho’s law would carry sentences of up to two to five years for providers.

And Louisiana advanced a bill last week that would not only make abortion a homicide but would include penalties for providers and patients — the latter of which is territory where Republicans have rarely ventured.

In 2016, Donald Trump momentarily said he supported punishments for women who obtain abortions, before backing off. A top antiabortion group disowned the proposal. And this week, Louisiana’s top antiabortion rights group said it opposes the state’s bill for that same reason.

Despite the apparent lack of appetite for punishing those who have abortions — outside Louisiana, at least — it’s the logical extension of banning abortion and likening it to murder. And it’s not difficult to see the idea taking off in certain corners of the party post-Roe.

Restricting contraception

The Louisiana bill could be at issue for another important reason: It could test the Supreme Court’s protection of the right to contraception, under Griswold v. Connecticut.

Experts say that the language of the bill could also criminalize certain forms of contraception, such as intrauterine devices (IUDs) and Plan B. That’s because it would change the state’s definition of a person to a fertilized egg (whereas the current definition is a fertilized egg that has become implanted in the womb).

Reeves also offered a noncommittal response this weekend when asked whether his state might target certain forms of contraception, saying merely, “While I’m sure there will be conversations around America regarding [contraceptives], it’s not something that we have spent a lot of time focused on.”

A senator and a would-be senator have recently criticized Griswold. Sen. Marsha Blackburn (R-Tenn.) called it “legally unsound.” And in Arizona, leading GOP Senate candidate Blake Masters says on his website that he would “vote only for federal judges who understand that Roe and Griswold and Casey were wrongly decided.” He clarified this weekend that he doesn’t support laws restricting contraception.

Opposing Griswold doesn’t mean you support contraception bans — just like opposing Roe doesn’t necessarily mean you support abortion bans. But overturning the decision opens the door to restrictions. And Griswold has previously been considered such a nonissue that Supreme Court justices including Samuel A. Alito Jr., John G. Roberts Jr., Neil M. Gorsuch and Amy Coney Barrett have felt freer to weigh in on it at their confirmation hearings.

“I think that Griswold is very, very, very, very, very, very unlikely to go anywhere,” Barrett said in 2020.

Alito’s leaked draft opinion indicated that a ruling on abortion should not be taken as a threat to other rights granted under the 14th Amendment, though critics have argued it could be.

Restrictions on traveling for abortions

One long-standing conservative argument against Roe was that abortion law should be left to the states. But some Republicans also aim to prevent people from traveling to other, less-restrictive states for abortions.

Missouri earlier this year became the first state to consider penalties for abortions sought by Missouri residents in other states. The law, which has not been enacted, would allow people to sue out-of-state physicians and anybody who helps get the patient across state lines. Advocates in Texas have reportedly looked at similar legislation.

And experts say that laws criminalizing abortion, and bills like the one Louisiana has advanced, could draw prosecutors to charge people for crossing state lines for abortions.

Some large employers say they will cover the costs of travel for out-of-state abortions. Sen. Marco Rubio (R-Fla.) is proposing legislation to prevent them from writing off such costs. Rubio says his bill, called the No Tax Breaks for Radical Corporate Activism Act (which would also apply to gender-affirming care for children), is needed to prevent the government from subsidizing abortion.

Cracking down on medication abortion

Tennessee Gov. Bill Lee (R) last week signed a bill strictly curtailing the dispensing of abortion pills (which are not the same as Plan B). It will require a clinician to be physically present when they are administered.

The idea is to crack down on people ordering such pills through the mail, which may be the next big front in the legal fight over abortion. As of 2020, the use of such pills accounted for a majority of abortions, according to the Guttmacher Institute, a pro-abortion-rights think tank. Advocates say that abortion restrictions in red states, combined with the pandemic, may have fueled a significant increase in their use. (The Food and Drug Administration doesn’t require such pills to be taken in a clinical setting.)

Several states have already restricted the use of such pills, and a few have even banned their mailing within state borders. But enforcing such restrictions is difficult, especially since many people are ordering them from overseas pharmacies, and the pills are mailed discreetly.

That could require states to go further in trying to crack down on them. And given the prevalence of this method, states’ attempts to prohibit and regulate medication abortion promise to be a huge focal point.

A federal abortion ban

In recent days, Senate Minority Leader Mitch McConnell (R-Ky.) made clear that a nationwide ban could be on the agenda in a Republican-controlled Senate.

“If the leaked opinion became the final opinion, legislative bodies — not only at the state level but at the federal level — certainly could legislate in that area,” he said, adding, “So yeah, it’s possible.”

There are significant hurdles to this, including that it would require a 60-vote, filibuster-proof majority in the Senate. Even if Republicans nix the filibuster, they have some abortion rights advocates in their Senate caucus. But if they have the power, there is little question the GOP base would demand it.

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