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Abortion Restrictions Targeted at Minors Never End There

The Atlantic

www.theatlantic.com › ideas › archive › 2023 › 04 › idaho-abortion-trafficking-law-criminalizing-minors › 673877

Not long after the Supreme Court overturned Roe v. Wade, commentators warned that another right might unexpectedly be in danger: the right to travel. Republicans in Missouri proposed a law that would have allowed people to sue anyone who helped a resident travel out of state to end a pregnancy. Missouri’s bill didn’t pass, but it seemed to signal a new strategy—one that Idaho has now taken up. Idaho’s new “abortion trafficking” bill, passed earlier this month, criminalizes helping a pregnant minor travel to get an abortion or obtain abortion pills out of state without parental consent, and creates a right to sue doctors who perform abortions for those minors, even if those doctors live and work in a state where abortion is legal.

But in fact this is an old strategy, one that helped anti-abortion groups revoke the right to abortion. The movement learned a key lesson from the decades-long struggle to undo Roe: It’s easiest to start with minors.

Part of the reason is constitutional. In the 1970s, when states began introducing laws requiring parental consent or notification before minors got an abortion, state legislators knew that children didn’t always have the same constitutional rights as adults. States could insist, quite plausibly under the Constitution and other parts of American law, that minors sometimes need to be protected from the consequences of their own decisions in ways that adults do not.

There was a political reason for starting with minors too. Parental-involvement laws have always enjoyed broad public support—including from some Americans who support abortion rights. In the 1980s and ’90s, when these laws were spreading across the country, many who supported parental-involvement laws viewed them as almost unrelated to any attack on abortion: They were simply commonsense protections of parental authority.

For the anti-abortion movement, the end goal, of course, was not modest limitations on the freedom of minors. The more the Court believed that restrictions were acceptable for minors, abortion opponents hoped, the more the justices may come to see abortion as something that was unnecessary or even dangerous for adults too—and the more the Court may be willing to uphold restrictions that affected everyone. In turn, the more restrictions the Court upheld, the more legal conflicts could arise in the lower courts, and the more anti-abortion groups could argue that a right to choose was unworkable and incoherent. Additionally, limiting minors’ rights could set a political precedent, reinforcing the idea that at least some abortion restrictions were worth having.

[Read: The new pro-life movement has a plan to end abortion]

Idaho’s law draws on the same incrementalist strategy. Conservative lawmakers might have hesitated to limit travel for abortion when roughly 70 percent of Americans, and a majority of Republicans, oppose laws banning the practice. And travel bans—including laws seeking to criminalize the behavior of doctors or others helping out-of-state abortion seekers who reached blue states—might fail in court. The Supreme Court has recognized protection for the right to travel between states since the early 19th century. In a series of decisions issued from the 1960s to the 1990s, the Court struck down laws that required Americans to live in a state for a certain amount of time before collecting welfare benefits. By any definition, the right to travel is “deeply rooted in the Nation’s history and tradition”—the test the Court set out in Dobbs v. Jackson Women’s Health Organization, the decision that reversed Roe—and no one could easily argue that the right to travel is a fiction invented by judicial activists, as Republicans once said of the right to an abortion. In his concurring Dobbs opinion, Justice Brett Kavanaugh reasoned that any law banning travel for abortion would obviously be unconstitutional.

Idaho’s law is based on a model released by the National Right to Life Committee a month after the Supreme Court’s reversal of Roe. As far-reaching as Idaho’s bill may sound, travel restrictions on minors will do relatively little to change the fact that many people will figure out ways around their state’s abortion restrictions, and Idaho’s law covers only a small subset of abortion seekers: Just 9 percent are younger than 20, and many of them have their parents’ consent.

But the point is to shift the Overton window, not to stop abortion travel overnight. Idaho’s bill attempts to change the subject from the right to travel to trafficking—the bill lifts its language from federal laws against child sex trafficking. Those laws are broad: They may treat an act as trafficking even if a minor doesn’t cross state lines or national borders, and they apply even if there is no evidence of force, fraud, or coercion. If Americans think of abortion travel as trafficking—inherently involuntary and morally wrong—their support for a right to travel for abortion may falter.

Idaho’s law is intended to set a legal precedent too. Even if the Supreme Court generally thinks a right to travel deserves protection, it is not clear how the courts will react to travel bans on minors. Nor is it clear that courts would invalidate other possible laws that, like Idaho’s, specifically criminalize helping minors travel (for example, helping a minor arrange an abortion in another state or driving them to the state line) and thus technically do not prohibit a right to cross state lines; or laws that allow lawsuits against doctors who perform abortions where the procedure is legal, but on minors from states where it is not—again, technically not a prohibition on travel itself. Starting with a law centered on minors may make justifying other such travel-related laws easier down the line, even if states try to apply them to adults. But the distinction between minors and adults does not matter in the big picture. The point of this law, and others like it, is to restrict access to abortion as much as possible. Today, it may be minors whose rights are on the line, but if the anti-abortion movement has its way, it will soon be the rest of us.

The GOP’s Imaginary Consensus on Abortion

The Atlantic

www.theatlantic.com › politics › archive › 2023 › 04 › republicans-nikki-haley-abortion-ban › 673889

Republicans have had 10 months to hammer out a coherent post-Roe message on abortion. You would think they’d have nailed it by now.

Yet on Tuesday, Nikki Haley set out to declare her position on the issue—and proceeded to be about as clear as concrete.

She began with plausible precision. “I want to save as many lives and help as many moms as possible,” the former South Carolina governor and ambassador to the United Nations told reporters gathered at the Susan B. Anthony Pro-Life America headquarters, in Northern Virginia—a press event billed as a “major policy speech.” But her statements quickly got squishier. It’s good that some states have passed anti-abortion laws in the past year, she said. And as for the states that have reacted by enshrining abortion-rights protections? Well, she wishes “that weren’t the case.”

And then she seemed to channel Veep’s Selina Meyer. “Different people in different places are taking different paths,” Haley said, with a self-assurance that belied the indeterminacy of her words.

[Read: Abortion pills will be the next battle in the 2024 election]

Questioning whether any national anti-abortion legislation would ever pass, Haley did gesture at a need for some action. “To do that at the federal level, the next president must find national consensus,” she said. As for what that might look like, she had no words. And she took no questions.

Some people seemed to like Haley’s speech, in a tepid way. She sounded human when she described how her husband had been adopted, and how she’d struggled with infertility. “Ms. Haley deserves credit for confronting the subject head on, with a speech that wasn’t sanctimonious or censorious,” The Wall Street Journal’s editorial board wrote, before concluding, “The party could do worse than Ms. Haley’s pitch.” But it could do better—or at least do with something more specific.  

Leaders of the self-described pro-life movement were predictably annoyed at Haley’s conciliatory-sounding vagueness. “Disappointing speech by @NikkiHaley today. Leads with compromise & defeatism, not vision & courage,” Lila Rose, who heads the group Live Action, tweeted. “We agree that consensus is important, but to achieve consensus we will need to stake out a principled position,” wrote Kristan Hawkins, the president of Students for Life of America.

Even Haley’s hosts seemed on the wrong page. “We are clear on Ambassador Haley’s commitment to acting on the American consensus against late-term abortion by protecting unborn children by at least 15 weeks,” Marjorie Dannenfelser, the president of Susan B. Anthony Pro-Life America, said in a statement sent to me. But a few hours later, Team Haley emailed me to correct the record: “She committed to working to find a consensus on banning late-term abortion. No specific weeks,” Nachama Soloveichik, Haley’s communications director, wrote. Not only did Haley alienate both sides—she confused them!

[Mary Ziegler: Abortion restrictions targeted at minors never stop there]

Haley is in a tough spot, as are all of the Republican presidential wannabes. They each have their own personal convictions on abortion; former Vice President Mike Pence, for example, has been outspoken in his support for a national ban. But they’re up against an issue that seems to have cost their party a string of recent elections. Most Americans believe that abortion should be accessible, with some limits.

The “consensus” position, then, is somewhere in the foggy zone between no abortion ever and abortion whenever. But primary elections tend to push candidates toward one extreme or another. “The gap between what the base demands and what swing voters will tolerate has gotten really wide,” Sarah Longwell, the publisher of the Never Trump site The Bulwark, told me. “Nowhere is this more true than on abortion.”

What all politicians need to do “is settle on a position they believe they can defend, and they need to repeat it consistently and clearly,” Whit Ayres, a Republican strategist, told me. “Any politician whose position on abortion is vague will be wrapped around the axle eventually with questions and doubts about where they actually stand.”

Some GOP candidates have followed Ayres’s advice. But much axle-wrapping has occurred already in the early days of the 2024 primary season.

Asked on the campaign trail whether he’d support a 15-week federal ban on abortion, Senator Tim Scott of South Carolina told CBS, “I do believe that we should have a robust conversation about what’s happening on a very important topic,” before pivoting so hard to an anecdote about Janet Yellen that I thought he’d need a neck brace. In a follow-up interview, Scott backtracked, clarifying that as president, he would “literally sign the most conservative pro-life legislation” Congress sent to his desk.

Florida Governor Ron DeSantis, who is expected to mount a presidential bid, did approve a very conservative state law recently—a six-week abortion ban. But he signed that legislation in the dead of night earlier this month, while most people in Tallahassee were probably in bed. (By contrast, last year, he celebrated the signing of a 15-week ban with a big party at a church.) The following day, DeSantis gave a speech at a Christian university full of students who are opposed to abortion, yet said nothing about his major legislative achievement. He’s mostly stayed quiet about it since—even at glad-handing events in early primary states.

So far, the only confirmed presidential candidate who seems clear on his position and keenly aware of the political optics is Donald Trump. Despite being hailed by anti-abortion activists as the “most pro-life president” in history, Trump has never been rigid on abortion (probably because he supported abortion rights for most of his life as a public figure), and he doesn’t talk much about the issue now. But a spokesperson told The Washington Post recently that Trump “believes that the Supreme Court, led by the three Justices which he supported, got it right when they ruled this is an issue that should be decided at the State level.” Shorter Trump: I’ve done my bit—it’s up to the states now. God bless.

If any national consensus on abortion exists, the GOP strategist Ayres said, Trump’s position “is pretty close” to it. Trump has always seemed to have “a lizard-brain sense of where the voters are,” Longwell said. “He has a relationship to the base, and he doesn’t have to pitch what he believes.” And, unlike DeSantis, Trump has never signed a law banning abortion at any stage, so it’ll be harder to pin him down. Sure, there’s an activist class that would like to see abortion banned in all cases. To them, Trump could reply, You got your justices. You’re welcome.

[Read: The new pro-life movement has a plan to end abortion]

Right now Trump and his lizard brain have a commanding lead in the GOP primary. His victory would set up an interesting general-election situation—a fitting one for our complicated post-Roe country: a former president who once personally supported abortion rights and is now politically opposed to them running against a sitting president whose own position on abortion is the exact opposite.

Until a Republican presidential nominee emerges, we’ll hear many more Haley-esque platitudes that sound thoughtful and weighty but ultimately aren’t.

“Whether we can save more lives nationally depends entirely on doing what no one has done to date,” Haley told reporters on Tuesday, before wrapping up her speech with—you could almost hear a drumroll—“finding consensus.” The waffling will continue, in other words, until the primary concludes.