In the nearly 50 years since the Supreme Court decided Roe v. Wade, there has perhaps never been a more consequential moment for abortion rights than the one we are in now. This fall, the nation’s highest court is hearing not one but three cases that could upend the fundamental promise at the heart of Roe: that pregnant women in the United States have a right to an abortion until a fetus becomes viable, which is around 24 weeks. On November 1, the court heard the first two of these cases, Whole Woman’s Health v. Jackson and United States v. Texas, which addressed Texas’s near-total abortion ban, the law known as SB 8. And on December 1, the court will hear arguments in Dobbs v. Jackson Women’s Health Organization, which takes on the 15-week abortion ban passed by Mississippi in 2018. In that case, the state has made a direct appeal to the Supreme Court to overrule Roe.
As the court weighs these cases, there has been deep and understandable anxiety about what a post-Roe world might portend. But the focus on the bans, while essential, has also obscured the terrifying realities that already exist, not only in Texas and Mississippi but in numerous other states where abortion rights have been undermined by other means. And it overlooks the multiple ways that attacks on reproductive rights have metastasized well beyond abortion in recent years, endangering women’s health, livelihoods, and even lives.
Indeed, amid the yearslong onslaught against abortion, maternal health has suffered across the country. The United States is now the deadliest developed nation in which to be pregnant. It ranks in the low 50s in the world for maternal mortality, behind Bosnia, Saudi Arabia, and other countries not known for their commitments to human rights.
There are likely a number of reasons for this, but researchers at Washington University published an important study this month in the journal Contraception that found that from 1995 to 2017, maternal deaths increased dramatically in states with laws that limit access to abortion. In 2017, the states with the worst records registered nearly double the number of maternal deaths as states where women have broader access to reproductive health care. Texas, was among the worst offenders, making it one of the deadliest places in the developed world to be pregnant.
Research by the Texas Policy Evaluation Project (TxPEP), a collaborative group of university-based investigators, attributes a range of negative impacts to the raft of antiabortion measures passed by the state since 2003. After it enacted a particularly draconian round of targeted regulations of abortion providers, or TRAP laws, in 2014, nearly half the clinics in the state closed. While the Supreme Court eventually struck down one of these law in 2016’s Whole Woman’s Health v. Hellerstedt, the victory, though important, came too late for the clinics and so many of their patients.
For Black women in particular, being coerced into carrying unwanted pregnancies can be a virtual death sentence; nationally, they are three times more likely than white women to die when they gestate to term. With the passage of SB 8, which remains in effect while the Supreme Court deliberates, Dr. David Eisenberg of Washington University predicts that Black maternal mortality could increase by 33 percent.
Despite such shocking rates, there has been insufficient effort at the national or state level to improve maternal health. What there has been is a singular focus on protecting fetuses, not merely to the exclusion of mothers but to their detriment, as the “fetal protection” laws designed to protect pregnant women from domestic violence have been turned against them instead.
One particularly troubling species of fetal protection law is the fetal homicide statute. Currently, 38 states have implemented such laws. Of these, nearly 30 have enacted feticide laws that apply to the earliest stages of pregnancy, meaning “any state of gestation/development.” At the national level, the Unborn Victims of Violence Act recognizes an embryo or fetus in utero as a legal victim if it is killed or harmed during the commission of any of more than 60 federal crimes. President George W. Bush signed that legislation in 2004.
The fallout from these laws has been widespread and extreme. In Tennessee, Maria Guerra was arrested in 2013 for driving under the influence and child endangerment, even though she had no child in the car and her blood alcohol was within the legal limit. The reason? She was pregnant—and in an era when law enforcement uses existing child-abuse laws to prosecute pregnant women, these cases are not unusual. In Iowa, Christine Taylor was arrested after falling down some steps in her home and then jailed for attempted feticide. She, too, was pregnant.
Frequently, class matters as much as race—meaning Black and Latina women no longer serve as the default targets of fetal protection prosecutions. In 2015, journalists Nina Martin and Amy Yurkanin reported that in Alabama alone, nearly 500 “new and expecting mothers” had been prosecuted in recent years for violating the state’s chemical endangerment statute, which was intended to address people who set up methamphetamine labs in their homes. Most of these pregnant women were white, and they were overwhelmingly poor. A decade ago, my research anticipated this shift, predicting that fetal protection prosecutions could jump the so-called color line.
So what comes next? While abortion rights activists try to stave off the worst, opponents of reproductive rights will also be busy. In Virginia, the newly elected Glenn Youngkin told a crowd at a campaign event in July, “When I’m governor, and I have a majority in the House, we can start going on [the] offense” on abortion issues. Sadly, there are already blueprints in hand.