Watch the Do-nut, not the hole

The report by Justin Webb on BBC World Service Radio is a bit better than this one by Clare Murphy, if only for the even more clear eyed view of American politics that you get from across the Pond, and for the audio of Scott McClellan trying to duck the question of the South Dakota law in the gaggle the other day (did you hear that on NPR? I didn't.). However, the written report makes an interesting point.

First, let's be clear what we are talking about:

Were Roe v Wade to be overturned, the issue would return to the state legislatures. In some of those likely to outlaw abortion were it to fall, local laws have already rendered the 1973 ruling all but irrelevant.

In the past decade, state legislatures have passed more than 400 laws limiting access to abortion. The Alan Guttmacher Institute, a pro-choice think tank whose findings are quoted by both sides, says abortion is available only in 13% of US counties.

So we've lost a great deal already. Repealing Roe, however, would only emphasize that, not cloud it (how many of us knew that abortion is available in only 13% of US counties?). And, again, the audio report notes that the battle over abortion would devolve from a federal issue to an issue in 50 state legislatures. Some, like South Dakota (and probably Texas, but don't be too sure) would outlaw it quickly. But there is already the problem of: who do you punish, and why? And that fight is not going to go away. Indeed, the question of who can be held responsible gets more bizarre, the more one looks at it:

But the battle would take place in state legislatures, and that, to an increasing number of pro-choicers, may be no bad thing.

It would force them to argue their case with voters at the state level, so the thinking goes, and stop them relying on unelected courts to impose their views. Abortion rights would finally have a firm, democratic foundation. Those women who currently have to travel to other states for a termination would continue to do so.

However there are many supporters of abortion rights who find this stance naive, arguing that some states which end up banning the procedure might also stop such abortion tourism.

"If states can decree that life begins at conception, they might also be able to use state custody laws to curtail the movements of pregnant women," William Baude argued in a recent New York Times editorial.

"Once Roe has been overturned, a state may be able to place an unborn child into protective custody, forbidding their mothers to take them across state lines."

The audio report notes that most Americans consider the Dakotans "barmy," because polls show a majority of Americans support access to abortions. Whether or not that is accurate, how likely is it that states would be able to enforce "custody" of fetuses by curtailing the travel of pregnant women? Those who couldn't afford to travel anyway would not be considered (we ignore the poor in this country; six months after Katrina proves that); but how do you craft a law that only restricts travel for the poor?

And which legislature is going to pass that law, declaring that women in the second trimester, let's say, can't travel to California, or New York?

Yeah, that'll work. Somehow I think the Supreme Court would have something to say about that (off the top of my head I can already craft a conflict between such a law and the Commerce Clause). And it brings us back to the question: if abortion is outlawed, how will the ban be enforced? Against doctors only? What of the mother? What responsibility does the father have? The parents, especially if the child is a minor? Can we really return to days of grotesguely unequal enforcement?

Even if Roe falls (and the BBC article notes that is hardly a foregone conclusion), it's fall won't mean an end to the argument.