This article was originally published by The Cambridge Globalist on 19 May 2022.
The overturning of Roe v Wade, the 1973 US Supreme Court ruling that set out a right to abortion until 24 weeks under the grounds of privacy, is imminent. With no federal law protecting abortion, states will adopt their own policies - and American society will be fundamentally changed. These are our predictions for a post-Roe America.
Half of all states will ban or severely restrict abortion access, despite there being no state in which more than 30% of residents support a federal ban on abortion. Only 16 states have laws explicitly protecting the right to abortion. In a number of states, including New Mexico, Virginia, and New Hampshire, there are no legal protections - abortion will remain accessible, but could be criminalised at any time. In Michigan, Wisconsin, and West Virginia, ‘zombie laws’ invalidated by Roe, but never taken off the books, will immediately reapply. Michigan Democrats are racing to repeal a 1931 law criminalising abortion.
In hostile states, anti-choice politicians are reinforcing existing pre-Roe laws with new, more extreme legislation. 13 states have passed ‘trigger bans’ specifically designed to apply from the moment Roe falls. These new restrictions will be more expansive than those existing pre-Roe.
Many new restrictions will be unscientific.
States will adopt misleadingly-named ‘heartbeat bills’, which restrict abortions to around six-weeks’ gestation, when a so-called ‘foetal heartbeat’ is detected. This is medically inaccurate and misleading. Cardiac valves are not developed in an embryo at six weeks - the ‘heartbeat’ sound is generated by ultrasound machines picking up minute electrical activity. Despite this inaccuracy, anti-choice activists have attempted to pass heartbeat bills in eleven states since 2013. Now, they are likely to re-introducted across states with anti-abortion legislators either as a stepping stone to an explicit ban, or as a way of introducing what is effectively a ban in all but name. It’s no coincidence that six weeks has become a rallying cry; it sounds long enough to casual observers, but it’s too short for most women to get an abortion in time.
Meanwhile, in Missouri, Republicans recently proposed banning abortions for ectopic pregnancies, while in 2019 Ohio requested that doctors ‘reimplant’ ectopic pregnancies or face ‘abortion murder’ charges (and potential sentences of life imprisonment). These proposals betray a staggering lack of understanding of female reproduction, and a disregard for women’s lives. Ectopic pregnancies are non-viable and life-threatening, occurring when the fertilised egg implants in the fallopian tube. Untreated, they cause bleeding, infertility, sepsis, and death. In countries with abortion bans, women have died due to doctors’ reticence to treat ectopic pregnancies for fear of prosecution.
Abortions will continue. Abortion laws do not reduce rates of abortion; they are punitive measures that make abortions more dangerous. Globally, 70,000 women die per year from unsafe abortions — a completely preventable loss of life considering that professionally-administered abortions are one of the safest medical procedures.
The coat-hanger is a symbol of pre-Roe days, when unsafe septic abortions were the primary killer of African-American women. Nowadays, misoprostol pills offer far safer means of self-administering abortions. Women will order pills on an expanding online black market. Many women will still need in-person care, and will be forced to travel to clinics in safe states, Canada, or Mexico. The influx of patients to clinics in abortion-friendly states will drive up waiting times and impact the residents of these safe states, too. As abortions will be less accessible, many will take place at a later stage of foetal gestation. The desperate — those who can’t travel because of cost, childcare, or disability; women in abusive relationships; or young girls too afraid to ask someone to take them out of state — will resort to dangerous homemade methods. All this incurs severe financial, mental, and physical burdens, hence the UN Human Rights Committee ruling that abortion bans constitute inhumane and degrading treatment, even torture. The Lancet editorial, a prestigious medical journal, has forcefully stated that in ending safe abortion, ‘[Supreme Court Justice] Alito and his supporters will have women’s blood on their hands’.
We’ll see policing and investigating of bodies to an unprecedented degree.
If abortion is criminalised, women will be jailed for having miscarriages. Miscarriages are often indistinguishable from abortions - the only ‘proof’ required for some prosecutions will be that a woman was pregnant, but is not anymore. This is already happening in the US: in 2021, Brittney Poolaw became the latest of 1,200 women convicted of manslaughter for having a miscarriage over the past 15 years - a figure which will explode post-Roe.
The intrusive surveillance and controlling of bodies will go further if the movement to grant ‘foetal personhood’ succeeds. This would give zygotes (fertilised eggs), embryos, and foetuses equal protections under the Fourteenth Amendment - they would be classed as people from the moment of conception. In recent days, Louisiana introduced a bill which, if passed, would classify the cells of a fertilised egg as a person. The concept of foetal personhood has had a growing impact on US legal rulings in recent years. In 2019, Marshae Jones was almost charged with manslaughter when she miscarried after being shot in the stomach. If formally acknowledged in law, foetal personhood would facilitate the criminal prosecution of any conduct perceived as endangering an embryo’s development - which could include drinking alcohol, performing manual labour, or declining medical treatment - as child abuse or murder. Biomedical research involving embryonic cells could not continue, and IVF would be under threat, as freezing an embryo could be classed as battery, and disposing of an embryo, as negligent homicide.
One significant difference to the pre-Roe years is the level of surveillance the state has at its disposal. When we use period tracking apps, google symptoms of morning sickness, or even buy scent-free soap, our online footprint knows we’re pregnant before we do. Anti-choice politicians will rip up data protection and privacy rights to access this information. The precedent is in place. Already, the location data firm SafeGraph is profiting from selling the location data of people who visit abortion clinics. During the pandemic, the Center for Disease Control and Prevention purchased location data to monitor whether Americans obeyed lockdowns. Law enforcement will pay data firms and adtech to identify people seeking, obtaining, or providing abortions.
Anti-choice states will search mail to find early medical abortion pills sent by post. The Fourth Amendment provision to open ‘suspicious’ mail, and the 1978 Supreme Court statement that ‘protecting or preserving life’ for any warrantless search, will be the pretext for this invasion of privacy. Anti-choice groups, which are already disingenuously posing as health clinics and setting up fake websites, will use entrapment techniques, offering care or abortion pills online, then reporting women who try to access it.
States will pass laws to police pregnant women crossing state lines. In Missouri, legislators recently considered a provision to allow private citizens to sue anyone helping a resident to obtain an abortion out of state. This would undermine precedents of freedom of travel, and the ability to engage in lawful activities without being subjected to extraterritorial applications of your resident state’s laws. It would, in the words of three legal scholars, ‘create a novel world of complex, interjurisdictional legal conflicts’.
Vigilantes will be emboldened; courts will be clogged with prosecutions. The novel bounty system rolled out in Texas, where ordinary citizens can sue any fellow citizen who helps someone access an abortion, will be expanded. American courts will be clogged with prosecutions against doctors, nurses, women, and anybody who could be considered complicit - for instance those who assist with travel or accompany women. Idaho has passed a law instructing that a rapist’s family can sue anybody who helps the rape victim seek an abortion.There are proposals to subject women to homicide charges. States may prosecute private companies, like Amazon, who assist their employees in obtaining abortions.
In defence of abortion rights, some legal cases will centre on religious freedom; Jewish teachings, for example, mandate access to abortion. Legal groups like the Center for Reproductive Rights could appeal to the UN Human Rights Committee to rule, as it did in Peru and Ireland, that the bans violate the US’ obligations to the International Covenant on Civil and Political Rights, or the Convention against Torture.
As doctors fear prosecution, women will die from pregnancy complications.
As evidenced by cases in Ireland and Poland, women die when doctors fail to perform essential abortions. Even in states with dispensations for life-saving abortions, doctors will fear prosecution, and will wait until a woman is close to death from sepsis or from a hemmorhage before they operate - a point at which it is often too late. Many will be reported by colleagues or strangers for helping women access essential care. It can be very difficult to prove that an abortion was medically necessary after the fact, and that the procedure fit the requirements of ambiguous (and often medically unsound) policies. Medical schools in states which reinforce bans may be prevented from teaching female reproductive health, exacerbating the existing scarcity of specialists. As a result, the startlingly high US maternal mortality rates, which disproportionately impact Black women, will increase.
We will see huge shifts in society. As part of the evidence submitted to the Supreme Court in this case, 150 distinguished economists produced a study on the social impact of a right to choose: higher educational attainment, increased labour participation, more prosperous career paths and higher earnings, and lower maternal mortality - especially amongst Black women. Losing Roe will impact the social standing of millions of women.
America faces further turmoil and division. Only 28% of the population supports overturning Roe. The legitimacy of the Supreme Court, in overturning what many classify as settled law, will be undermined. The Democrats may try to codify a right to abortion by re-attempting to pass the Women’s Health Act through the Senate. To do this, they would likely have to remove the filibuster, a delaying tactic that can be used by a minority of Senators to kill proposed laws. Even then, any legislation attempting to codify abortion could be ruled unconstitutional by the Supreme Court.
Meanwhile, conservatives are already mobilizing to enact a federal ban to outlaw abortion in all states - from California to New York. Plans centre on banning abortion from six weeks, or (if the ‘Life at Conception’ Act passes), even outright.
The overturning of Roe could threaten other rights also protected under the purview of privacy - like the 1965 Supreme Court decision underpinning the right to access contraception, Griswold v Connecticut. Access to contraception is already under fire - especially emergency contraception. States like Louisiana and Idaho are considering legislation to limit the accessibility of birth control. IUDs and even regular contraceptive pills could be banned as a result of ‘foetal personhood’ laws, because their last line of defence can be to prevent fertilised eggs from implanting into the womb. Bills could class this, the prevention of the zygote from developing into pregnancy, as murder.
Gay marriage, protected by the 2015 Supreme Court ruling on Obergefell v. Hodges, is also threatened. Analyst Brynn Tannehill suggests that in Texas, an executive order will instruct clerks not to issue new same-sex marriage licenses within the year.
The overturning of Roe v Wade will embolden anti-choice activists internationally. The millions of dollars which went into lobbying to overturn Roe v Wade can now be redistributed to anti-choice groups in pro-choice states and across the world. In 2020, Open Democracy revealed that US right-wing Christian organisations currently spend $280 million per year funding interational campaigns against women’s rights and gay rights; this figure will continue to rise.
In the UK, where The Times called this rollback ‘the right approach’, our rights are far from settled. Abortion is still technically criminalised, and in April a woman was brought to an Oxford court for ‘procuring abortion’. Mass polling consistently shows that ant
i-choice activists are a tiny minority in the UK, and a right to abortion is not controversial - but we should not be complacent. The UK’s anti-choice movement is well-organised and receives funding and training from its US counterparts; it could replicate the tactics used in the US. A representative of BPAS (the UK’s leading abortion service provider), for example, suggested that we will now see an escalation of protests outside clinics.
The Supreme Court’s final decision is expected in June. Until then, pro-choice politicians and activists will be preparing abortion funds bail and legal funds, working on further litigation, funding clinics close to red-state borders, and even recruiting coders for the internet battlezones.
When Donald Trump was asked in 2016 whether he would support the Supreme Court overturning Roe v Wade, he responded: “Well, if we put another two or perhaps three justices on, that’s what will happen.” Almost six years and three Trump-appointed justices later, Roe v Wade is being gutted. America is not, however, sliding ‘back in time’ to a pre-Roe world. It is hurtling forwards into an entirely new and altogether more extreme post-Roe future. To state that what will follow is systemic denial of autonomy, controlling of bodies, gross invasion of privacy, and huge numbers of avoidable deaths is not hyperbolic. It is the logical end-point of extreme ‘pro-life’ legislation. It is the end-point of what to so many people was a hypothetical, moral, and philosophical question, the tangible impact of which is now about to be violently and viscerally played out on and inside of women’s bodies.
Comments