Paul Kengor: Where we’re headed — abortion and the states

Roe v. Wade is facing unprecedented challenges, as seen during Supreme Court oral arguments last week in Dobbs v. Jackson. The chances of abortion being sent back to the states are higher than ever. As that prospect looms, pro-choice politicians are stepping forward to protect legal abortion in their states.

Leading that charge are New York Gov. Kathy Hochul and California Gov. Gavin Newsom. They do so with support at the national level by President Biden.

The Dobbs case hails from Mississippi. But it’s not just that case. The Texas effort to limit abortions to the time of the unborn child’s heartbeat sprung Hochul, Newsom and Biden into action. Biden promised to throw the “whole of government” against it. Hochul and Newsom quickly responded by offering their states as destination centers for women of Texas and elsewhere to come for abortions.

“Abortion access is safe in New York,” says Hochul. “To the women of Texas, I want to say I am with you. Lady Liberty is here to welcome you with open arms.” She vows: “We will help you find a way to New York.”

Newsom vows to make California a “reproductive freedom state.”

What’s happening with states like California and New York is something many of us long expected, namely: If Roe v. Wade is reversed or curtailed by the U.S. Supreme Court, abortion will be turned over to the states.

For the record, Roe is based on a “right” to an abortion extended from a so-called “penumbra” or “shadow” of a “right to privacy” in the Constitution. In truth, neither abortion nor even the word “privacy” are mentioned in the Constitution — no, not one time — even as the protection of “life” is mentioned three times (in the Fifth and 14th amendments).

Of course, one can argue that when the framers mentioned life, they were not thinking of abortion. No doubt that is correct. But still, a pro-lifer looking for a right to “life” in the Constitution clearly has a little more to grab on to than a pro-choicer looking for a right to abortion or even “privacy.”

This was something that Judge Robert Bork said to Sens. Joe Biden and Ted Kennedy and pro-choice liberals over 30 years ago, and for which he was called everything from a misogynist to a gargoyle. But there’s a very good chance that’s exactly where we’re headed.

If so, what will happen to abortion in America? Well, some states will expand it and others will limit it. Which states? The answer is pretty simple and predictable: blue states vs. red states, Democrat states vs. Republican states. The firmly Democrat states, especially on the West Coast and northeast, will become America’s pro-choice states. For states like New York and California, this process has already begun.

States like Pennsylvania, home of the late Gov. Bob Casey, the pro-life Democrat and namesake of Planned Parenthood v. Casey, will likely lean more pro-life with more abortion restrictions, often depending on who is governor and which party controls the Legislature. Since 2019, there has been a heartbeat bill in the Pennsylvania Legislature.

This is where we seem to be going in America: Abortion is likely heading back to the states, where it should have remained all along.