Roe & “Safe States”

In the current presidential race, according to RH Reality Check, most of the GOP field opposes abortion. Some of the Republican candidates (McCain and Thompson) are explicitly calling for the repeal of Roe v. Wade, while Romney believes that states should decide and Huckabee and Hunter support a Constitutional amendment. Giuliani and Paul, while neither calling for the repeal of Roe nor an amendment would likely appoint Supreme Court nominees apt to limit the contours of a woman’s right to choose. If they are successful, how would that work out?

In 1924, the state of Virginia enacted a law entitled “An Act to Preserve Racial Integrity.” The law made it a crime for a white person to marry anyone except another white person. But it also made it a crime for an interracial couple to evade the law by going to a state where they could be married legally.

The law was no joke.

As late as 1958, an interracial couple who had been married in Washington DC returned to Virginia where they were convicted of violating this law. They were sentenced to a year in the penitentiary unless they were willing to leave the state for 25 years. They moved to Washington, D.C. and sued the state of Virginia. Their suit—with the wonderful ironic title Loving v. The State of Virginia— resulted in the Supreme Court’s overthrow of all such state laws as unconstitutional.

Here was a case of behavior that was legal in one state being blocked by laws from states that had made the behavior illegal. This is a scenario that may happen if Roe is overturned. In such a situation at least nine states will retain legal abortion, but the states that criminalize abortion may also seek to pass laws to punish women who go out of state for a legal procedure.

They may also want legislation that will punish those who help the woman with her plans. There may be areas where something like the antebellum underground railroad will spring up.

For those who think this kind of future is unlikely, note that it is now impossible for a Republican candidate to get the nomination unless he or she vows to appoint anti-abortion judges such as Justice Scalia. One or two more such judges and the deed is done.

It is prudent to prepare for a future that may never come. The exercise also serves to awaken people who underestimate the political clout of the anti-abortion forces.

Millions of young people have never known a world divided into “safe states” and states where abortion is a crime. Bringing that vision before them may be one of the most astute things the pro-choice movement can do.

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