The Guttmacher Institute brilliantly anticipated the question of “what next?” in the states after the SCOTUS decided Dobbs in this blog of June 1, 2022 entitled: “Abortion Policy in Roe’s Absence.” This is an interesting (and heartwarming) blog to read as it makes it clear that this is not the “Wild West” when it comes to abortion laws. On the contrary, the Guttmacher blog reports that we all enter a rather large and sophisticated web of established state abortion laws, both pro and con. States have already established many laws on the right to abortion, 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 divide these two broad divisions into similar subsets of states within each of the “pro-abortion” and “anti-abortion” laws. There are not two positions, “for” or “against”, but a broad third position of “for, but under the right circumstances” (e.g. rape/incest/deformity, etc.)
Indeed, Judge Alito, author of the majority opinion (and joined in the opinion, or only in the judgment, by five other judges) in the Dobbs case, began his opinion by referring to what he decided were three major divisions of thought on the issue of abortion in the United States at that time:
“Abortion presents a deep moral issue on which Americans have widely differing views. Some believe fervently that a human person is born at conception and that abortion ends an innocent life. Others are just as believe that any regulation of abortion undermines a woman’s right to control her own body and prevents women from attaining full equality Still others in a third group believe that abortion should be permitted in some, but not all, circumstances, and members of this group have varying opinions on the particular restrictions that should be imposed. (Majority op. at p. 1, first para. To note: The opinion of the Court is numbered separately from the Syllabus and follows the Syllabus in the published decision.)
And, as we prepare for the political debates to come in each of the states, here is a sobering set of facts that the Supreme Court Syllabus threw in its summary of the Dobbs decision on treatment of abortion by state law before Deer:
“Until the late 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 treatises. Indeed, abortion has long been a crime in all states. At common law, abortion was criminal at least at certain stages of pregnancy and was considered illegal and could have very serious consequences at all stages.American law followed common law until a wave of legal restrictions in the 1800s extended criminal liability for abortions. By the time the Fourteenth Amendment was passed[Editor’sNote:RatifiedJuly91868]three-fourths of the states had made abortion a crime at any stage of pregnancy. This consensus lasted until day when Roe was decided. (Syllabus on p. 3, first full paragraph)
So the political battles to come in the states are going to be vitriolic and just plain ugly. And, you can bet there will be reversals of state laws that have already established “established” statutory rule – one way or another. Every status of the state, whether for or against, is now being debated, with renewed passion on both sides. So HR professionals designing employment policies and benefits related to workplace abortion issues will need to be mindful of local state changes as they unfold… intensively. for probably the next five years or so.
And to make the HR challenge more difficult, state abortion rights laws are going to be “checkerboard”: no “one size fits all” rule will emerge from all fifty states. But that is exactly how the founders of the Republic of the United States envisioned the evolution of state laws and as they hoped. James Madison (who played a pivotal role in enacting the American Constitution and later became the fourth President of the United States) published an essay which is now called No. 45 of the Federalist documents (the unofficial “legislative history” of the meaning of the US Constitution). In Federalist No 45, Madison explained the relationship of the states to the future federal government that the future US 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 appease concerns among the public that a strong central federal government would invade and replace local state governments:
“The powers reserved to the different States shall extend to all objects which, in the ordinary course of business, concern the life, liberties and property of the people, as well as the internal order, improvement and prosperity of the country. ‘State. The operations of the federal government will be more extensive and more important in times of war and danger; those of state governments in times of peace and security. As the former periods will probably have a small proportion with the latter, the state governments will enjoy here another advantage over the federal government. The more, indeed, the federal powers are returned to national defence, the less frequent will be the scenes of danger which could favor their ascendancy over the governments of particular States.
So, by design, there will be a lot of variety in laws “for” and “against” abortion. Buckle up, HR!