For countless Americans, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Care was a cataclysm. A constitutional right that women and their families had possessed for nearly half a century was suddenly taken away.
The only comparable ruling in the Supreme Court’s entire history is Dred Scott v. Sanford, handed down in 1857, notoriously decreeing that Blacks “had no rights which the white man was bound to respect,” and struck down Congress’s ability to restrict slavery in the territories.
Dred Scott helped bring on the Civil War. Dobbs has produced a political struggle that will unfold over years, if not decades. In some respects, Dobbs is even more confounding, because it took effect instantly, shutting down clinics in the states with restrictive laws few thought would ever be enforced.
In time, Dobbs will come to be seen as among the worst of the court’s injustices; nothing can justify its sweeping nature, given that the vast majority of Americans support abortion rights, though many also favor restrictions on that right.
The question now is what states will do in response. In some Republican-controlled states, restrictions have been enacted that are so extreme they completely ignore public opinion.
Fortunately, Maine has a 1994 law signed by a Republican governor that codified in law the rights granted by Roe v. Wade, the precedent Dobbs obliterated. It was enacted in response to 1992’s Planned Parenthood v. Casey, which upheld Roe but showed that the court’s abortion rights majority was shrinking.
Still, no one then even imagined anything like Dobbs was possible. And the Republican drive to seek political advantage in response is as distasteful as it is opportunistic.
By contrast, Gov. Janet Mills has now proposed four bills, still undrafted, that would expand abortion rights beyond the Roe guarantees, extending up to fetal viability. They will call for some of the most consequential votes legislators have taken in years.
The one attracting most attention, and opposition, is intended to address the plight of Dana Pierce, the Yarmouth resident who discovered late in pregnancy that her already named child would inevitably suffer a painful death before or immediately after birth.
Maine’s law did not cover such circumstances, and Mills’ proposal would allow abortions throughout pregnancy if a medical professional approves. It certainly deserves consideration, yet other states with no restrictions post-viability allow abortion for other reasons, not necessarily involving life or health.
One hopes legislators will proceed carefully and ensure that any new rights are carefully defined and have broad public support.
A second bill would prohibit municipalities from banning or restricting abortion – mirroring some Republican-passed laws mandating the opposite – is understandable, but probably unnecessary. No Maine municipality could enact such a law under the “home rule” provisions of the state Constitution, and it’s unlikely any would try.
A third proposal would clarify that women from other states can travel to Maine for abortions that may not be legal in their own states. It deserves approval.
The fourth bill shows how restrictions and permissions for abortion can become especially tricky.
In 2019, her first year as governor, Mills convinced fellow Democrats in the Legislature to provide state funding for abortion under MaineCare, the state’s Medicaid program. That’s something that hadn’t happened for 40 years.
The obstacle was the Hyde Amendment, added to the federal budget in 1977 and signed into law by President Carter, which ended any federal Medicaid funding for abortion. It has been renewed in every annual budget since then.
The 17 states that provide Medicaid funding do not receive the federal match, in Maine’s case amounting to at least 60%. Mills’s proposal, similarly, would mandate that private insurance plans cover abortion with no co-pays or deductibles.
We are getting onto uncertain ground here. Using state-only Medicaid funding requires spending beyond all other medical procedures MaineCare covers.
Requiring private insurers to do the same, privileging abortion services above, say, cancer or heart disease, may give legislators pause.
The real answer is to repeal the Hyde Amendment, which should have been done years ago. It may seem impossible at the moment, but that could change, perhaps sooner than we expect.
Even in Republican-dominated states, where abortion rights have been on the ballot they have been upheld. There’s no reason to think public opinion will shift against such rights, unless supporters overplay their hand.
It’s not an enviable job lawmakers have in front of them, but it is a necessary one, given Dobbs.
They should pay close attention to the language, and listen carefully to their constituents, before deciding how to vote.
Douglas Rooks, a Maine editor, commentator and reporter since 1984, is the author of three books, and is now researching the life and career of a U.S. Chief Justice. He welcomes comment at drooks@tds.net
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