EDITOR’S NOTE: A previous version of this article stated that five states have only one abortion clinic. There are now six states with only one abortion clinic. A previous version also stated that Misoprostol is 93 percent effective without Mifepristone. It has been updated to reflect that it is 80 to 85 percent effective without either Mifepristone or surgical intervention.
If they are shrewd, the six antichoice justices on the Supreme Court will resist the urge to overturn Roe v. Wade when they decide next term on Dobbs v. Jackson Women’s Health Organization. At issue is a Mississippi law banning abortion after 15 weeks of gestation in explicit defiance of Roe, which protects abortion rights until around 24 weeks. Why hand the Democrats an issue that has worked well for them in purple states like Virginia? An attempt in 2012 to force women seeking abortions to have transvaginal ultrasounds backfired against Republicans so powerfully the state is now entirely under Democratic control.
Despite Roe, states where antichoicers are strong have succeeded in drastically limiting abortion access by passing measures that force clinics to close—six have only one—and heap up obstacles that keep women from accessing abortions in time. As it has done with voting rights, the court can effectively gut Roe while leaving it formally in place. In fact, it tried in 1992, when Planned Parenthood of Southeastern Pennsylvania v. Casey replaced Roe’s trimester framework with the concept of “viability” and permitted pre-viability restrictions as long as they didn’t constitute an “undue burden,” whatever that is.
Shrewd politics isn’t everything, though. There’s also religious and personal conviction—Justices Thomas, Alito, Roberts, Gorsuch, Kavanaugh, and Barrett are longtime abortion opponents. And political calculations can cut both ways: Maybe five out of nine think it’s past time to reward the powerful antiabortion movement, for which the end of Roe is the holy grail. Why, after all, did the court take the Mississippi case if not to use it to abandon Roe? The case isn’t even shielded with the fig leaf of “women’s health”—it explicitly calls on the court to overturn Roe in the name of pre-viable fetuses.
Most political mavens think the court will leave Roe standing. But some say overturning Roe won’t be so bad. It will wake up the pro-choice majority. It will force antiabortion legislators to back off the extreme bills they rely on the courts to set aside. If they had to live with the real-life consequences of their votes, they’d think twice, goes the theory.
I’m not so sure. As we’ve seen with vaccine refusals, the rise of QAnon, the backlash against critical race theory, and numerous other issues, reason can be helpless against demagoguery and paranoia and lies. The antichoice movement has invented plenty of its own facts: You can’t get pregnant from rape, abortion is never medically necessary, it’s genocide against Black people, and so on. Who’s to say reality will carry the day on abortion?
If Roe goes, abortion will immediately become illegal in 10 states. (As of November, Oklahoma will make it 11.) As in the years immediately preceding Roe, when a few states had already liberalized their laws, the US will be a house divided. But otherwise, post-Roe won’t be like pre-Roe. In one way that will be all to the good: When it comes to illegal abortion, pills are much safer than coat hangers and knitting needles or a visit to a Mafia-connected “doctor.” Misoprostol, an ulcer medication that is one-half of the abortion pill regime and is 80 to 85 percent effective on its own, is available on the Internet and can be bought over the counter in Mexico. It’s already in wide use in countries where abortion is illegal. (The other half, mifepristone, is tightly controlled, but if abortion goes underground that could change.) It will not be easy for police in antiabortion states to shut a black market in misoprostol down.
In another way, though, post-Roe will be much worse than pre-Roe. During the entire century or more that abortion was illegal in the United States, hardly any women went to prison for ending their pregnancies. They were subpoenaed to testify against their abortion provider, they were humiliated in court, they were hounded while dying in their hospital beds by police officers looking to identify the provider, but they were not themselves put on trial. Mothers, friends, boyfriends, husbands, and others who helped with money or arrangements or transportation were left alone. Unless there was a death or serious injury, few providers were arrested.
This time around will be different. When abortion was illegal, there was no organized, aggressive antiabortion movement with a wing of violent fanatics. The language of fetal personhood and fetal rights was much less developed. Abortion was wrong, but the rationale was as much or more about enforcing female chastity and promoting marriage and childbirth as it was about baby killing. That’s why, until the 1960s, it was only a misdemeanor. Today, the only argument left standing is that fertilized eggs and fetuses are persons, and abortion is homicide. That has raised the emotional stakes so high it is hard to explain why a woman should not be prosecuted or why the friend who drives her to the clinic is not an accessory. Even now, although a medical abortion looks exactly like a natural miscarriage, there have been cases of women being arrested after going to the ER with excessive bleeding—there are a lot of antiabortion people who work in hospitals—or after they confide in the wrong sister or friend or roommate.
That thinking is behind Texas’s Senate Bill 8, which Governor Greg Abbott signed into law in May. It bans abortion after a fetal heartbeat is detected, at around six weeks of gestation—when many women don’t even know they are pregnant. In addition, instead of leaving enforcement to the state, the law empowers private citizens to sue anyone who helps a woman get an abortion after that point—a clinic or the friend sitting with her in the waiting room. No connection is required between the citizen and the abortion, so anyone can sue: a nosy neighbor or a random antiabortion activist, the kind of person who takes down license numbers in a clinic parking lot. There’s money in it too—up to $10,000 if the suit is successful. That this bill was a top priority of Texas Republicans tells you everything you need to know about the GOP and its famous “base.”
Overturning Roe will invite more and more of this kind of madness. Something for the court to ponder as it weighs Mississippi’s challenge to legal abortion.