Republicans in Louisiana have advanced a bill to make abortion a crime of murder, as a draft decision that would end abortion rights continues to spark nationwide protests and police in Washington raised “non-scalable” fences around the supreme court.
Supporters admitted the bill, under which a woman terminating a pregnancy or anyone assisting her could be charged, was unconstitutional – as long as Roe v Wade was law.
The supreme court is expected to formally overturn Roe v Wade, the 1973 case which established the right to abortion, in June.
Danny McCormick, the state representative behind the Louisiana bill, said: “We can’t wait on the supreme court.”
Since the draft ruling that seems set to overturn Roe was published by Politico on Monday night, Democrats have warned of a likely torrent of challenges to established rights.
Joe Biden has sounded the alarm about threats to privacy-based rights including the rights to contraception (Griswold v Connecticut, 1965) and to same-sex marriage (Obergefell v Hodges, 2015). The president also raised the prospect of attacks on the teaching of LGTBQ+ children.
On Wednesday, Biden said Republicans pushing such cases constituted “the most extreme political organisation … in recent American history”.
The same day in Texas, the Republican governor raised the possibility of challenging a 1982 ruling which said states must provide free education to all children, including those of undocumented migrants.
“I think we will resurrect that case and challenge this issue again,” Greg Abbott said.
Abbott is a prominent figure on the hard right of that Republican party, with rumoured presidential ambitions.
Undocumented migration is a key issue in his re-election fight against Beto O’Rourke, a former congressman, and a central part of the national Republican party’s approach to midterm elections in which they are favoured to take back Congress.
Abbott was speaking to the conservative radio host Joe Pagliarulo.
Pagliarulo said: “We’re talking about public tax dollars, public property tax dollars going to fund these schools to teach children who are five, six, seven, 10 years old, who don’t even have remedial English skills. This is a real burden on communities. What can you do about that?”
Abbott said: “The challenges put on our public systems is extraordinary. Texas already long ago sued the federal government about having to incur the costs of the education program, in a case called Plyler v Doe.
“And the supreme court ruled against us on the issue about denying, or let’s say Texas having to bear that burden. I think we will resurrect that case and challenge this issue again, because the expenses are extraordinary and the times are different than when Plyler v Doe was issued many decades ago.”
Most progressive concern has focused on rulings which protect privacy rights, among them Lawrence v Texas (2003), which said it was unconstitutional to make gay sex a crime.
Charles Kaiser, a leading historian of gay life in the US, said the draft Roe opinion “so blithely disregards past precedents, it could suggest a willingness to overturn previous court decisions enshrining certain fundamental rights for LGBTQ+ people.
“One passage in particular set off alarm bells for activists who think its reasoning could jeopardise the court’s decisions legalising sodomy and the right of members of the same sex to marry.”
The conservative justice Samuel Alito, Kaiser said, “cited those decisions and denigrated them by saying they used criteria ‘which at a higher level of generality could license fundamental rights to rights to illicit drug use, prostitution, and the like’”.
Speaking to Bloomberg Law, Cynthia Soohoo, co-director of the Human Rights and Gender Justice Clinic at the City University of New York, said: “The same arguments that Justice Alito makes against recognising constitutional protection for abortion can be made about … the right to access contraception.”
Katherine Franke, director of the Center for Gender and Sexuality Law at Columbia University, told the same site: “Once you kick out the stilts underneath Roe there’s nothing to rest those other decisions on.
“There’s no constitutional foundation for the Lawrence decision saying that criminalising same-sex sex is unconstitutional, or the Obergefell decision that says same-sex couples have a constitutional right to marry.”
On the far right, Peter Brimelow, the founder of the VDare nativist website whom the New York Times has linked to the Fox News host Tucker Carlson, was reported to have greeted news of the draft Roe ruling by writing: “Next stop Brown vs Board!”
That was a reference to Brown v Board of Education, the 1954 case which ended racial segregation in public schools.
