By Jill Filipovic
June 28, 2018
IDEAS
Filipovic is a lawyer and writer.

In just a few years, scores of American women could lose their right to safe, legal abortion.

President Donald Trump can now choose a nominee to fill the Supreme Court seat of outgoing Justice Anthony Kennedy, a crucial defender of Roe v. Wade. Since being nominated to the Court by President Reagan in 1988, Kennedy served as an inconsistent but important bulwark against some of the court’s greater right-wing excesses. In 1992, when a case that could have overturned Roe v. Wade went to the Court, Kennedy signed on to a majority opinion upholding abortion rights. It became widely understood that he wouldn’t sign onto an opinion overturning Roe. He became a firewall — one that prompted anti-abortion activists to set about chipping away at access to abortion, instead of mounting a direct legal challenge.

But once the Senate approves another conservative justice, all bets are off. And the implications will reach much farther than abortion rights.

What Roe means for other rights

In 1973, Roe established women’s constitutional right to privacy for an abortion. But for many conservative legal scholars, it is practically canon that no such constitutional right exists. To them, Roe is based on an invented right.

But there is precedent for the decision. In the 1965 case Griswold v. Connecticut, the Supreme Court struck down a Connecticut law that limited birth control access. It was one of a set of important decisions that enshrined privacy rights into constitutional law and extended those rights to sex and reproduction. The Court held that the Bill of Rights and the Due Process clause of the 14th Amendment implicitly created a “zone of privacy.”

Read more: With Justice Kennedy gone, it’s Trump’s court now

Connecticut’s ban of contraceptive use, the Court said, violated the privacy rights of a marital relationship. That same theory was extended to contraceptive use by non-married people, and with Roe, the court ruled that the fundamental right to privacy encompassed a woman’s right to decide, along with her family and her doctor, whether or not to continue a pregnancy.

If Roe is done away with under the theory that privacy rights don’t exist, this could mean that there is no constitutional right to birth control, either. Cases that came after Roe, including Lawrence v. Texas, which invalidated a Texas law that criminalized sex between two men, were decided on similar premises — and could be similarly imperiled.

How laws could change after Roe

If Trump, the GOP and conservative legal minds succeed, we will be back to the pre-Roe days of patchwork abortion rights across the United States. Before the Roe decision, abortion was largely illegal in the U.S. Overall, the landscape was grim. Large hospitals had “septic abortion wards” for women who came in with serious infections from unsafe illegal abortions; thousands of those women died. Many other women were forced to bear children against their will and were stigmatized for doing so. Unmarried pregnant women were routinely sent away to give birth and were coerced or sometimes forced into giving up their children for adoption — and then shamed into silence.

In some states, like New York, abortion will be legal even if Roe is overturned. Other blue states will scramble to remove pre-Roe anti-abortion laws from the books so that the procedure will become legal (moves that will certainly come with protracted legislative fights). But across much of the south and middle of the country, women will find themselves with far fewer rights than their blue-state sisters.

As the reaction to Kennedy’s firewalling has shown, the anti-abortion movement is creative and vindictive. They will surely use all the tools at their disposal to make abortion expensive, dangerous and hard to get — including by pushing federal legislation outlawing or limiting the procedure. For all their crowing about “state’s rights,” conservatives are happy to legislate their ideals nationally when they can. One of the first efforts will likely be to curtail the ability of minors to travel across state lines for legal abortions.

For a decade, anti-abortion advocates have been pushing “personhood” legislation, which says a “person” with all rights due under the Constitution exists at the moment a sperm fertilizes an egg. They also claim, contrary to the scientific consensus, that many forms of hormonal birth control — including the Pill and the IUD — prevent fertilized eggs from implanting in the uterus, thereby killing a person; under this framework, common in-vitro fertilization procedures, in which only some embryos are implanted, would also amount to murder. In reality, more than half of fertilized eggs don’t implant naturally, which is one reason why the medical community defines pregnancy as beginning at implantation, not fertilization.

Personhood laws have been on state ballots before, but the point has been largely moot: Roe’s broad protection of abortion rights means that they can’t be implemented. Without that safety net and if more personhood laws pass — especially if the Griswold contraception case falls in addition to Roe — we will have ceded scientific ground to unscientific ideological claims. Women might find that IVF and some of the most common forms of contraception are no longer legal in their state because of how anti-abortion legislators claim they work.

Should Roe be overturned, anyone who helps a woman obtain an illegal abortion — including doctors — and even the women themselves may also become subject to punishment. Anti-abortion activists and law enforcement officers swear up and down that they would never criminalize women for having abortions. This is belied by the fact that they already criminalize women they suspect of inducing their own abortions. Trump himself said that “some form of punishment” should befall women who end pregnancies.

What a post-Roe America could look like

Too many women die or are seriously injured from unsafe, usually illegal abortion; annually, there are 25 million unsafe abortions around the world, according to the World Health Organization. Outlawing abortion in much of the U.S. will add to those numbers.

But American women won’t return to the days of coat hangers and back alleys, and we largely won’t be in the same position as women in rural villages in impoverished and underdeveloped countries. Medical technology has progressed significantly, and the medications that induce miscarriage are now, at least in much of the developed world, increasingly accessible; so too are treatments for unsafe abortion. These medications have allowed women to self-induce their own abortions, even clandestinely. Given their prevalence and overall safety, there is unlikely to be an epidemic of women dying of sepsis in hospitals across the nation as there was pre-Roe.

Read more: I brought the case that made same-sex marriage legal. Anthony Kennedy’s retirement threatens all we have won

That doesn’t mean the abortion landscape will be safe. We know that the legality of abortion doesn’t track with instances of abortion — that is, women have abortions whether it’s legal or not, and outlawing the procedure doesn’t mean that abortion rates are significantly lower. (Some of the countries with the highest abortion rates in the world are places where it’s largely outlawed, and many of the countries with the lowest rates have legal abortion on the books). Tens of thousands of women die every year from unsafe illegal abortion, nearly all in developing countries.

In a post-Roe America, thanks to Misoprostol, the most common abortion-inducing medication, and a growing network of people who can help pregnant women determine appropriate dosing, some illegal abortions will be safe — or at least safer than pre-Roe procedures. But many won’t be. Despite its many uses — Misoprostol is also a life-saving treatment for maternal hemorrhaging — anti-abortion forces will do their best to make the drug hard to procure. Women will do whatever they’ve heard works, whether that’s inserting a foreign object through their cervix, buying black-market god-knows-what drugs, throwing themselves down stairs, douching with bleach or taking up whatever method they’ve heard about through the grapevine or read on an Internet message board. Many American women already self-induce their own abortions, because the anti-abortion movement has so effectively restricted abortion access in many states. The U.S. also has the worst maternal mortality rate in the developed world; if women are forced to carry medically unsafe pregnancies, more of them could die in childbirth.

The case’s larger meaning

If Roe goes, every woman will hear the message that her body is not her own. That she should feel ashamed for believing that she alone should make this most fundamental, life-altering decision of whether or not to bear a child. That she isn’t a woman making a decision like so many others, but that she is a criminal.

If anti-abortion advocates get their way, and women will involuntarily carry unwanted pregnancies to term because the law forces them to. Many of these women will be poor and already vulnerable, and thanks to existing research, we have a good idea of what will happen: Those who are unable to access abortions will be more likely to remain in poverty and less likely to leave abusive partners.

As American women now face the prospect of restricted abortion access, much of the rest of the world is moving in the opposite direction. Having witnessed the harms of illegal abortion, countries from Ireland to Chile have liberalized their abortion laws in recent years. We are one of the only prosperous, developed democratic nations still fighting over whether women should control what happens in their own uteruses. Soon enough, we may be one of the only prosperous, developed democratic nations where the law will treat women like criminals simply for wanting sovereignty over our own bodies and our own futures.

SPONSORED FINANCIAL CONTENT

You May Like

EDIT POST