The Guttmacher Institute brilliantly anticipated the issue of “what’s next?” in the states after the SCOTUS decided Dobbs in this June 1, 2022 Blog titled: “Abortion Policy in the Absence of Roe.” This is an interesting (and comforting) Blog to read since it makes clear that it is not the “Wild West” out there as to state abortion laws. Rather, the Guttmacher Blog reports that we are all walking into a rather large and sophisticated web of established state laws on abortion, both pro and con. The states have already laid down a lot of laws on abortion rights, or not. Guttmacher reports that “22 states [already] have laws that could be used to restrict the legal status of abortion” and that “16 states and the District of Columbia have laws that protect the right to abortion.” The Guttmacher Blog then goes on to break those two broad divisions into subsets of like states within each of the “pro-abortion” and “anti-abortion” statutes. There are not two positions, “pro” or “con,” but a third broad position of “pro, but in the right circumstances” (i.e., rape/incest/deformity, etc.)
Indeed, Justice Alito, author of the Majority Opinion (and joined in the Opinion, or in just the Judgement, by five other Justices) in the Dobbs case, began his Opinion by referring to what he decided were three prominent divisions of thinking about the issue of abortion in the United States at this time:
“Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.” (Majority Op at p. 1, first full para. Note: The Opinion of the Court is separately numbered from the Syllabus and follows the Syllabus in the published decision.)
And, as we get ready for the coming political debates in each of the states, here is a sobering set of facts that the Supreme Court Syllabus threw down in its summary of the Dobbs decision about state law treatment of abortion before Roe:
“Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe, no federal or state court had recognized such a right. Nor had any scholarly treatise. Indeed, abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time the Fourteenth Amendment was adopted {Editor’s Note: ratified July 9, 1868], three-quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until the day Roe was decided.” (Syllabus at p. 3, first full para)
So, the coming political battles in the states are going to be vitriolic and just plain ugly. And, you can bet there will be some reversals of the state laws which have already laid down a “settled” statutory rule—one way or the other. Every state statute, whether pro or con, is now up for debate, with renewed passion on both sides. So, HR professionals designing employment policies and benefits touching abortion issues in the workplace are going to have to be alert to local state changes as they unfold…intensively for likely the next five years, or so.
And to make the HR challenge more difficult, state laws on abortion rights are going to be “Checkerboard”: no “one-size-fits-all” rule will emerge from the fifty states. But, that is exactly how the Founders of the Republic of the United States envisioned state laws developing and as they hoped. James Madison (who played a pivotal role in the enactment of the U.S. Constitution and later became the fourth President of the United States) published an essay which is today called No. 45 of the Federalist Papers (the unofficial “legislative history” of the meaning of the U.S. Constitution). In Federalist No 45, Madison explained the relationship of the states to the coming federal government the coming U.S. Constitution envisioned and wrote about the powers to be reserved to each state to govern the “lives, liberties, and properties of the people…” and to soothe concerns among the public that a strong central federal government would invade and supersede local state governments:
“The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.”
So, by design, there is going to be lots of variety in “pro” and “con” abortion laws. Buckle Up, HR!