Life After “Roe” Will Be Worse Than We Feared

Life After “Roe” Will Be Worse Than We Feared

Life After Roe Will Be Worse Than We Feared

We are dealing with religious fanatics, with police chiefs on a mission and prosecutors looking to make their careers in deeply red places.


Let’s not kid ourselves. The decision in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade, is going to be a catastrophe. There’s a German proverb that translates roughly as “the soup is never eaten as hot as it’s cooked,” meaning things won’t be as bad as you fear. Sometimes that’s true, but it wasn’t for the Germans, and it won’t be for us.

For years pro-choicers have warned that the right to abortion was at risk, only to be called Chicken Littles by pundits and politicos, usually men. Some thought returning abortion to the states would lead to a middle-of-the-road practical solution and, more important, take abortion out of politics. Ha! Others were sure no one wanted bans to happen: Republicans only used “cultural issues” to distract voters from the party’s real agenda, screwing the working class on behalf of corporations. Thomas Frank made himself famous with a book devoted to that thesis, What’s the Matter with Kansas? I hope he apologizes to the women of Kansas, because the fears he dismissed have come to pass.

What can be done? Abortion funds, which raise money for low-income patients’ procedures, are wonderful, and you should give them all your money now, but even before Dobbs, they couldn’t help everyone in need. Their work will be harder now. On Monday, abortion funds in Texas suspended operations because of laws criminalizing helping women seeking to end their pregnancies. If you thought, as many did, that abortion opponents would be satisfied with a return to pre-Roe hypocrisies, when millions of women got abortions while law enforcement mostly looked the other way, think again.

What about traveling to pro-choice states, some of which have recently strengthened protections for abortion rights? That’s not so easy, even for people with money, although it will be much harder for low-income patients. Most women who have abortions are mothers, after all; many have jobs that won’t allow them time off. They can’t just pick up and fly to New York City or Chicago, or drive all day and night to reach the nearest clinic. They’ll need help, and help is expensive. The Brigid Alliance, an abortion travel service which pays all costs—transportation, lodging, food, child care—spends about $1,000 per patient. The influx of patients from states with bans will affect care in the states they travel to. Clinics are already overscheduled. Soon they will be overwhelmed.

Ah, but there are abortion pills, some say, which make it possible to end pregnancies cheaply at home. Pills are crucial, but not a panacea. Yes, they are safe, unlike illegal abortions pre-Roe, but you have to know they exist, how to find them, how to take them, and what to say if you end up going to the ER so you don’t get arrested. You have to know how pregnant you are—they don’t work so well after 12 weeks. You have to avoid copycat anti-abortion websites. And around 5 percent of the time, they won’t work. Who knows how long it will be legal to send them, by mail or in person, to an abortion-ban state? Abortion opponents are already working on ways to criminalize pills and people who make it possible to acquire them. The latest: Facebook and Instagram are taking down information on how to obtain them. Remember when information wanted to be free?

So let’s face it. In half the country, women are fetal vessels now. Their lives, their physical and mental health, their education, their employment, their relationships, their ability to care for their other children, their hopes, ambitions and dreams—none of that matters. What matters is that they incubate a fertilized egg and deliver an infant—which, as Amy Coney Barrett suggested, they can always drop off at the nearest safe-haven baby box. The law may not come after you if you give a pregnant friend money for the procedure or drive her to a free state; anti-abortion activists might not track your pregnancy digitally, as Jia Tolentino warns, but then again, they might (memo to readers: Delete your period tracker now). The capacity exists: to know your online searches, your travel plans, your proximity to a clinic. Does a fetal vessel have rights? I wouldn’t count on it.

Anti-abortion politics have long relied on dividing women into good and bad, chaste and slutty. This was never true or just, but it allowed many women to think the right to abortion would never be something they needed. Soon it will be clear that even women with planned, welcome pregnancies will be affected by the loss of Roe. Where abortion is banned, pregnant women will be responsible for producing a live, healthy baby, and at risk of arrest and worse if they don’t. Is a miscarriage or a stillbirth the result of attempted abortion? Better investigate, like they do in El Salvador. Refuse a Caesarean or a hospital delivery, reject doctor’s order for bed rest, or tell your doctor you’ve used illegal drugs? As National Advocates for Pregnant Women has documented, over a thousand women in the past 20 years have already been charged, and sometimes convicted, for these and other behaviors during pregnancy, whether or not they resulted in harm to the fetus or born baby. Black, brown, and low-income women are more likely to be caught in the net, but why should it stop there? We are dealing with religious fanatics, with police chiefs on a mission and prosecutors looking to make their careers in deeply red places.

For all women in abortion ban states, medical care will change. Some methods of birth control—the IUD, emergency contraception, maybe even the pill—may be outlawed as “abortifacients,” even though they do not in fact end pregnancies. It is not at all clear that doctors will always be able to terminate even the most dangerous pregnancies—an ectopic pregnancy, for example, which can never result in a live birth but can be fatal, or a miscarriage in progress even of fetuses with no chance of survival. Doctors are conservative and cautious by training and status; women undergoing miscarriages have already been denied care in Texas. In Poland, where abortion is now almost completely banned, two women recently died of sepsis because doctors refused to give them abortions, in one case for a miscarriage in progress, in another for a dead fetus in a twin pregnancy.

In Malta, just last week, a pregnant American tourist had to be airlifted to Spain in the middle of her miscarriage, because Malta has a complete ban on abortion. (My dear friend Frances Kissling, longtime head of Catholics for Choice, says Catholic teaching permits doctors to end a pregnancy under these circumstances, but apparently not everyone has gotten the message.)

And what about men? Abortion bans give any fertile man the power to permanently derail or even end a girl or woman’s life. He could be a rapist, a husband, a one-night stand, a teenage boyfriend who promises to pull out but doesn’t succeed. The cost to him will be little or nothing—it’s not very likely that the gun-happy Supreme Court will declare the penis a dangerous weapon. The inseminator can even sue, and maybe obtain custody and child support from his victim. Just the other week in Louisiana, a man won custody of his teenage daughter by the woman he had raped years ago, when she was only 15. (That judgment has since been reversed, after a huge media uproar.)  

It staggers the mind that the court is so oblivious to the hard realities of women’s lives. But it shouldn’t. After all, when has the patriarchal Christianity to which all six of the anti-choice justices subscribe cared about women and their struggles to make a decent life with so much stacked against them economically, socially, and culturally? When has the Catholic Church cared about the effort required of women to manage their fertility for 30–40 years? When has fundamentalist Protestantism said women should not be ruled by men? Back in 1991, then–federal appeals court judge Samuel Alito supported requiring women to notify their husbands before having an abortion, despite much testimony about the harm this would do to women in troubled marriages. Fast forward, and Alito, author of the Dobbs decision, cites 13th-century case law and the legal writings of 17th-century jurist Matthew Hale, who defended marital rape and sent two women to execution as witches.

It’s not easy to wrap one’s head around a paradigm shift. After Kavanaugh was confirmed, even after Amy Coney effing Barret was confirmed, even after the leak of Alito’s draft decision in Dobbs, pundits and reporters spent a lot of energy trying to make the anti-abortion six look more moderate than they are, more concerned with procedure and precedent, more cautious, more interested in incremental rather than sweeping change. I myself wrote more than once that if the court were smart it would keep Roe, while gutting its effectiveness, rather than trigger a political nightmare for the Republican Party. But that was an if, not a when.

I guess Mr. Dooley was wrong when he said that the Supreme Court follows the election returns. Sometimes doing the bidding of GOP Jesus is more important.

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