During the third and final presidential debate Wednesday, Republican nominee Donald Trump declared that should he be elected president, he would appoint justices to the U.S. Supreme Court that would overturn Roe v. Wade and send the issue of legal abortion “back to the states.”
“Sending abortion back to the states to decide” is a perennial conservative talking point. And it is one revealing that conservatives either fundamentally do not understand how civil rights and federalism operate, or they do understand basic civics and they simply don’t believe women deserve the same basic dignity as men.
I won’t rule out either.
It can’t be said enough. Reproductive autonomy is a fundamental human and constitutional right that state law can never… trump. It’s Civics 101. The Constitution balances federal power with the rights of states to govern themselves. When federal constitutional protections and state law come in conflict, federal law wins. Every time. It’s not a maybe. And those fundamental rights follow us wherever we go. They set a floor, so to speak, where all of us stand equal before the government—federal and state. A patient in Mississippi, therefore, has the same right to an abortion as a patient in New York.
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Which means, first of all, there is no Tenth Amendment states rights’ avenue for conservatives to squirrel around Roe‘s protections. So the only way the issue goes “back to the states” is through a direct reversal of Roe and a holding from the Supreme Court that reproductive autonomy is no longer a federal constitutional right. And although, as Trump implied, that is possible, it certainly doesn’t mesh with any sort of illusion that women have basic human dignity.
Still, that hasn’t stopped various conservative officials from trying to lay the groundwork to overturn Roe, nullify its holding that reproductive autonomy is a constitutional right, and open the door to states immediately re-criminalizing abortion.
In June 2014, a divided Fifth Circuit Court of Appeals ruled that Mississippi could not use targeted restrictions on abortion providers to try and close the only abortion clinic operating in the state. The decision was a significant win for reproductive rights advocates. But buried in that win was Judge Emilio Garza’s dissent from the majority decision that blocked the law, in which he argued that the “mere act of crossing a state border” is not an undue burden on abortion rights.
Garza’s comments weren’t just a flip dismissal of reproductive autonomy. They are designed to set a specific ideological and jurisprudential path to undoing that right altogether.
“If all undue burden analyses must stop at state borders, the existence of an undue burden will depend, in part, on a plaintiff’s location relative to those boundaries,” Garza wrote.“For instance, women in northern Mississippi who live a mere fifteen miles from the heart of Memphis, Tennessee, could never enjoin the closure of the clinic in that city.”
In other words, Garza argued, the question of whether or not a state can close all clinics within its borders depends on where those clinics exist relative to patients in need. And Garza adds an especially cynical touch by trying to frame his comments as coming from the perspective of the patient, feigning concern for those “women in northern Mississippi who live a mere fifteen miles from the heart of Memphis, Tennessee” that would not have standing to sue to block the closure of a Tennessee clinic.
Garza tries to make this sound like a neutral position, but let’s be clear here. What he is arguing is that a woman in Tennessee has different rights than a woman in Mississippi when it comes to accessing an abortion.
And this is the great constitutional lie conservatives peddle when it comes to abortion: that it should be up to the states to decide the fundamental rights of their residents. Women already travel across borders to access an abortion. Decades of persistent and pernicious attacks on access have forced that reality. Eradicating abortion clinics or re-criminalizing abortion itself doesn’t end the need for that care. It just makes it dangerous, if not deadly, to access.
It also doesn’t change the fact that women have a fundamental right to reproductive autonomy. It just shields the states from any responsibility in the damage produced by driving patients underground. This summer in Whole Woman’s Health v. Hellerstedt, we finally saw the Supreme Court recognize that truth.
Trump and his fellow conservatives want to undo that, and think they still have an ideological pathway to do so—putting the health care of women all over the country in jeopardy.