Roe is already dead.
States are already intervening, and would regardless of the status of RvW.
The fact that RvW is a legal steaming pile of crap is NOT the issue, here. It is that RvW is irrelevant.
But what hasn’t been pointed out in the frenzy over the leaked Dobbs draft opinion is that Roe is, practically speaking, already dead — regardless of what the Court decides to do in Dobbs. The states already have the ability and authority to restrict abortion in any manner they see fit. Accordingly, they do not need to wait for the Court to overrule Roe to severely limit or simply outlaw abortion within state borders.
So how?
Oklahoma was able to pull this off by copying the ingenious enforcement mechanism from the Texas Heartbeat Act, which prohibits state officials from enforcing its restrictions while authorizing private citizens to sue anyone who performs or “aids or abets” an abortion. By structuring its law in this manner, Oklahoma has made it impossible for abortion providers to challenge the statute’s constitutionality in federal court: There are no state officials providers can sue for enforcing the law. [emphasis added]
Basically, State officials can’t be sued. THEY are not enforcing any restrictions. But abortionists can be, personally.
All of this makes the anticipated ruling in Dobbs at least somewhat anticlimactic — it will not be the formal overruling of Roe that returns the issue of abortion to the states. That moment has already arrived, as Texas and Oklahoma have cracked the code and demonstrated how to enact an abortion ban that evades judicial review and neuters Roe.
And to be sure, more states will do this if Roe somehow escapes the chopping block. ANY state can outlaw abortion, now.
Indeed, Texas and Oklahoma have already done it — and more states will follow if the eventual ruling in Dobbs stops short of the leaked draft opinion’s total repudiation of Roe.
And just think. Jet’s say you are just a “temp” at the front desk at the abortion clinic. You have no malpractice insurance! And yet you can be sued for aiding and abetting an abortion…
In the immortal words of Dr. McCoy, “It’s dead, Jim!”