The Fight Over Abortion Has Only Just Begun

15 minute read

When the Supreme Court handed down its opinion overturning Roe v. Wade on the morning of June 24, the news struck like lightning, setting off thousands of fires that will shape legal, political, health, and economic battles in the U.S. for years to come.

In the immediate aftermath of the ruling, protesters on both sides of the debate flooded the plaza in front of the Supreme Court building in Washington. Anti-abortion advocates prayed and danced as young activists declared themselves the “post-Roe generation.” Abortion-rights supporters, meanwhile, vibrated with both rage and despair. Some wept. Others held images of hangers, a grim reference to the dangerous abortions that took place before Roe was decided in 1973.

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But if the searing emotions resonate with most Americans, neither reference fully encapsulates our new reality. We are neither the post-Roe generation nor are we transported back to 1972. Technology has made the future of abortion access in America both less horrifically grisly than it was a generation ago and simultaneously more frightening than anyone could have predicted.

Read More: Supreme Court Overturns Roe v. Wade, Undoing Constitutional Right to Abortion

Abortion pills, which can now be prescribed via telehealth appointments and mailed directly to people’s homes, allow those who are up to 10 weeks pregnant to safely and privately end their pregnancies. And those who cannot, or do not want to, use pills can turn to vast networks online—unimaginable 50 years ago—where advocates are poised to help those in need pay for and travel to obtain abortions. But like most technological advances, these transformations cut both ways. The internet, a fount of advice, is also a swamp of misinformation; apps and digital platforms, readily available in our pockets, are also powerful tools of surveillance.

The legal and political battle over the future of abortion access, now unfolding at the state and local levels, will reflect this newly complex landscape. Anti-abortion advocates, who have spent a half century amassing power in the federal judiciary and in state legislatures, are poised to pass new measures designed to limit access and layer in criminal penalties for an increasingly broad set of behaviors. The issue of abortion, long polarizing, has now been codified into the platforms of both major political parties, catapulting it to the fiery center of the nation’s culture wars.

The decision does not, of course, come as a surprise. A leaked draft, published by Politico in early May, offered a thorough blueprint. Still, the opinion in Dobbs v. Jackson Women’s Health Organization is historic, overturning both Roe and Planned Parenthood v. Casey, the 1992 case that reaffirmed abortion rights. In his majority opinion, Justice Samuel Alito argues that “Roe was egregiously wrong from the start” because, he writes, abortion is “not deeply rooted in the Nation’s history and traditions.” The same could be said about the rights to birth control, same-sex marriage, and same-sex sexual activity—points that Justice Clarence Thomas explicitly raises in his concurring opinion arguing that the court should reconsider which rights are found in the 14th Amendment’s Due Process Clause.

Read More: Inside Mississippi’s Last Abortion Clinic—and the Biggest Fight for Abortion Rights in a Generation

In all the fury and emotion of this moment, historians are rightly cautioning against any suggestion that the U.S. may be on the precipice of another Civil War. But it is worth noting that a decision that rolls back a major civil right will have the nearly immediate effect of re-creating a starkly fractured map of America: about half of the states will ban abortion entirely or severely restrict it, while the other half will likely either strengthen access or preserve the status quo. What’s clear now is that the period that we are entering will not look like 1972. Rather, it will be a futuristic steampunk version of the American past, as warring factions battle over new technologies and clash against new state laws that aim to dictate whose lives have value within their borders.

Anti-abortion protestors surround Ren Allen, center, an escort for the Jackson Women's Health Organization in Jackson, Miss., after the U.S. Supreme Court overturned Roe v. Wade on June 24, 2022.
Anti-abortion protestors surround Ren Allen, center, an escort for the Jackson Women's Health Organization in Jackson, Miss., after the U.S. Supreme Court overturned Roe v. Wade on June 24, 2022.Barbara Gauntt—Clarion Ledger/USA TODAY NETWORK/Reuters

Even before the Supreme Court heard oral arguments in Dobbs last fall, the mere existence of medication abortion had transformed reproductive rights in America. Now, activists see these pills as central, though not a panacea, to the future of abortion access nationwide. In the past year, activists and providers have ramped up efforts to crank out information about abortion pills, publishing guides on how to find them and how to take them, launching ads on social media and the New York City subway, and hosting free Zoom classes on how to self-manage abortions outside the medical system. They are also staffing up hotlines to answer people’s medical and legal questions, and funding programs to teach primary-care doctors and medical residents how to follow up with patients who’ve used abortion pills. Telehealth startups like Hey Jane, Choix, and Just the Pill are partnering with online pharmacies to deliver the drugs to people in states where it’s legal. Groups like Aid Access, which are based overseas, plan to continue shipping the pills anywhere in the U.S., regardless of state restrictions, often in small, unmarked packages that are indistinguishable from other mail.

State and local abortion-rights activists are also already in high gear. With the U.S. Congress repeatedly failing to pass legislation codifying the right to abortion, and President Joe Biden weighing executive actions that lawyers say would likely be challenged, abortion-rights groups, grassroots networks, and abortion funds have been raising money to support existing clinics, lobbying against efforts to criminalize providers and patients, and building expansive networks designed to transport people hundreds of miles to receive care. In the Mountain West, a telehealth service is launching the country’s first mobile abortion clinics—bulletproofed vehicles equipped with abortion pills, exam tables, and medical equipment that will stop in different locations each week to offer free services to patients from states where the procedure is banned. In the Midwest, a group of volunteer pilots has banded together to offer free private flights to patients who need to travel to get abortions.

Read More: What the Supreme Court’s Abortion Decision Means for Your State

In Texas and Tennessee, volunteers are teaching people how to use abortion pills to safely end their pregnancies on their own, if they cannot access a doctor—a service that advocates say is critical to bridging the stark racial, economic, and geographic disparities that are already emerging in who can access the pills. In Ohio, clergy are learning to combat the stigma around abortion, and in Florida, a synagogue has filed suit, arguing that the state’s abortion ban infringes on religious freedom. Liberal state governments, too, are enacting additional protections. California, New York, Oregon, and Connecticut have all either added funds for abortion patients or safeguards for providers who treat those from out of state; 16 states now explicitly protect abortion rights—far more than the four that did so before 1973.

Anti-abortion groups are also using every tool at their disposal, including well-targeted Google ads, social media campaigns, and TikTok videos, to capitalize on this moment. It’s no mistake, for example, that the top two search results for “abortion in Dallas” lead to anti-abortion pregnancy-center organizations. Students for Life of America, which works with young people around the country, has spearheaded social media ad campaigns, hosted virtual lobbying days, and released documentary series designed to scare people away from medication abortion. Other groups, including Live Action, use emotive videos and Facebook ads to promote “abortion pill reversal,” a supposed treatment that the American College of Obstetricians and Gynecologists says is “unproven and unethical.”

Navigating this sea of information and misinformation is often confounding and may soon be more dangerous. Many of the apps and chatbots and 24-hour hotlines available online collect users’ personal information—data that vigilantes and local law-enforcement officials may soon be able to use to track, shame, implicate, or even prosecute pregnant people seeking abortions, or those who help them. Legal experts warn that period-tracking apps, Google search histories, and text messages between friends can currently be used as evidence in a court of law.

Brick-and-mortar anti-abortion pregnancy centers, which have exploded in number in recent years, also collect women’s most intimate data, including what they plan to do with their pregnancy. Many of these centers use names like Your Choice and Women’s Health Clinic, but most are faith-based groups connected to large anti-abortion organizations and not licensed medical facilities—which means that the data they collect is not subject to federal privacy laws, legal and privacy experts say. Through all of this, the racial profiling and surveillance that people of color already face is likely to mean those communities will be disproportionately criminalized in this realm too.

Read More: Anti-Abortion Pregnancy Centers Are Collecting Troves of Data That Could Be Weaponized Against Women

Abortion-rights protesters gather outside the Supreme court in Washington, D.C., following the court's decision to overturn Roe v. Wade, on June 24, 2022.
Abortion-rights protesters gather outside the Supreme court in Washington, D.C., following the court's decision to overturn Roe v. Wade, on June 24, 2022.Gemunu Amarasinghe—AP

The legal landscape is also shifting rapidly. Texas’ ban on abortion after roughly six weeks, which has been in effect since last September, essentially puts a price on personal health information. It offers a $10,000 reward to any private citizen who successfully brings a case against anyone who provides an abortion or aids someone in getting one. Oklahoma’s abortion ban, which went into effect in May, offers a similar reward. Idaho’s six-week abortion ban allows the fetus’ family members to sue for a potential $20,000 reward, and was only blocked in court because Roe still stood this spring.

Historically, mainstream anti-abortion advocates have avoided punishing women and instead focused on providers, says Mary Ziegler, an abortion-law historian at the University of California, Davis. But as abortion pills play a bigger role, she says, that may soon change. In the past two years, conservative lawmakers have introduced a raft of new laws effectively prohibiting the use of telemedicine for abortion pills. In some cases, the measures directly outlaw mailing the pills to state residents and increase criminal penalties for violating existing abortion laws. On June 21, Louisiana’s governor, a Democrat, signed two new laws that do just that. In May, Louisiana legislators advanced a bill that would have classified abortion as homicide and allowed pregnant women to be charged. (It failed but could be reintroduced.)

In March, Missouri legislators introduced a measure that would make it a felony to perform an abortion on an ectopic pregnancy—a condition in which a fertilized egg implants outside the uterus and cannot survive, and that can be life-threatening to the pregnant person. The same measure would treat shipping abortion pills as drug trafficking. Missouri lawmakers also introduced a bill that would allow citizens to sue anyone who helps a Missouri resident travel to get an abortion out of state. None of those measures passed this session, but legal experts say they expect to see the ground shift quickly. The National Association of Criminal Defense Lawyers warned last year that without Roe, these aggressive state abortion bans “will open the door to mass criminalization on an unprecedented scale.”

Read More: Anti-Abortion Pregnancy Centers Are Collecting Troves of Data That Could Be Weaponized Against Women

The ambitions of anti-abortion legislators match the broader anti-abortion movement, which has over the decades, shifted dramatically to the right, following larger trends in American politics. As the number of competitive political districts have decreased, politicians have been incentivized to focus on winning primaries, rather than general elections. That, in turn, has led to “more extreme abortion policies,” Ziegler says. A highly conservative Supreme Court majority, delivered in part by the anti-abortion movement, also had the effect of emboldening lawmakers to test once-fringe ideas—like abortion bans without exceptions for rape or incest. After the Supreme Court draft leaked in May, U.S. Congress Republicans floated the idea of a federal abortion ban, a proposal that would have been considered outrageous less than a year ago.

Now that Roe is officially overturned, national anti-abortion groups are also cranking into high gear. Susan B. Anthony Pro-Life America rebranded this month to expand into more state legislative advocacy, and Students for Life of America, which runs programs to help pregnant college students and organizes young anti-abortion advocates around the country, has changed its organizational structure to focus on lobbying for state-based abortion restrictions. The National Right to Life Committee, the country’s largest anti-abortion organization, recently released a so-called model bill, providing a legislative template for states to criminalize nearly all abortions, as well as people aiding an abortion, distributing abortion pills, and sharing any information or hosting a website about abortion. Conservative lawmakers in at least six states have called for special legislative sessions that would allow their states to pass new bills banning abortion in light of the Supreme Court ruling. Local law enforcement officials could also start to take action against anyone they see as violating new laws immediately.

If these laws and enforcement measures are new, the idea of policing a particular group’s behavior is not, says Michele Goodwin, a law professor at the University of California, Irvine. A post-Roe America will likely have deep parallels to the post-Civil War Jim Crow laws, which were, she says, “both substantively and symbolically, meant to relegate people to a second-class citizenship.” All of the new anti-abortion legislation cropping up in states is designed not only to stop most abortions, she says, but to intimidate. “​​The way in which the state shows suspicion rather than care and respect for [people] leads people to internalize shame and guilt. And it means that people then will resist turning to the state when they actually need the state support and when they should get it,” she says. Like data-collection and surveillance efforts, these effects may fall hardest on people of color, poor people, and others who are already marginalized.

Doctors and health care providers also warn that many of these new anti-abortion laws will have the effect of punishing women seeking care for miscarriages, pregnancy complications, and other related concerns. In Texas, some ob-gyns have reported that pharmacies are refusing to fill prescriptions to treat miscarriages and a New England Journal of Medicine article published June 22 found that the Texas law has led to some hospitals denying patients care and others with pregnancy complications being forced to wait until their conditions become life-threatening. This reality, the doctors say, compounds an already horrific problem: the states set to ban abortion currently have some of the highest maternal-mortality rates in the country.

Read More: Meet the Pharmacist Expanding Access to Abortion Pills Across the U.S.

Meanwhile, as women travel to liberal states for abortions and other reproductive health care, they’re driving up wait times and straining already stretched infrastructure, according to Yamelsie Rodriguez, president and CEO of Planned Parenthood of the St. Louis Region and Southwest Missouri. A Planned Parenthood clinic in Fairview Heights, Ill., just across the border from Missouri, has already seen a 130% increase in patients. The week before the ruling, it was looking into whether it can keep its doors open seven days a week to meet Illinois’ expected 8,600% increase in out-of-state patients.

Anti-abortion advocates are planning to start their post-Roe advocacy with “prayerful” rallies in state capitals around the country, according to Students for Life. But the movement is also gearing up to capitalize on its victory. Advocates are planning to encourage new legislation, and Susan B. Anthony Pro-Life America is investing in its program aimed at connecting pregnant women with medical, social, and material resources through anti-abortion pregnancy centers and other nonprofits, though Republican politicians have not embraced legislation that Democrats and reproductive-rights advocates say would help support families. Organizations on both sides of the debate are bracing for what comes next, including a potential increase in violence as the country reacts to the Supreme Court decision.

Activists have been prepared for an outcome of this kind for nearly a half-century. But for most people, the Dobbs decision comes as a shock—undermining once-immutable legal precedent, upending politics just months before a mid-term, and running starkly counter to public opinion. A majority of Americans believe the court should have left Roe intact. For the many millions of Americans who are just now grappling with the implications of the court’s decision, the reality will be harsh. It took half a century for the anti-abortion advocates to reach this point and nearly twice as long for Black people to get a Civil Rights Act following the Jim Crow era. This is not a temporary state of affairs, but rather the beginning of a new set of battles. We are neither back in 1972 nor the post-Roe generation; we are Dobbs generation now.

—With reporting by Leslie Dickstein and Simmone Shah/New York

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