My plan is to do this in two parts. In this installment, I am going to talk generally about the ruling and its expected impacts. I’ll have a separate post this week about some of the potential political fallout, with the caveat that, nobody knows.
Let's start with what's most important. Tens of millions of girls and women live in states that will ban almost all abortions, either from conception onward, or no later than fifteen weeks. In fact, that's already happening. Last year, a slew of Republican-controlled legislatures passed trigger laws to go into effect as soon as the Supreme Court overturned Roe. Some are now operational. Others will be in the next thirty days or so. In about a dozen states, the ban is or will be almost total, in which not even rape and incest are legally valid reasons for getting an abortion. Only some of those states will allow exceptions for “lethal fetal anomalies.” (dwell on the nauseating gruesomeness of that for a moment).
Though those states make exceptions for cases in which the woman’s life is in jeopardy, they vary in how serious the potential health effects need to be before an abortion is allowable. These polities also criminalize the procedure for providers and, in some cases, for patients. In Alabama, the law that is now in effect says doctors who perform abortions at any stage of pregnancy could face up to 99 years in prison. Elsewhere, more typical penalties include up to ten years imprisonment. Under such circumstances, doctors are going to face a terrible dilemma and many will err on the side of reticence, even in the case of dire physical threat to the patient. That will, we can safely assume, lead to more deaths.
Beyond the immediate calamity of the ruling for the physical well-being of the lives of the people the Court majority seems to care the least about, Justices Breyer, Kagan and Sotomayor also emphasize the importance of the fundamental right that majority has now stripped:
A brook-no-compromise refusal to recognize a woman’s right to choose, from the first day of pregnancy. And that position… cannot be squared with this Court’s longstanding view that women indeed have rights (whatever the state of the world in 1868) to make the most personal and consequential decisions about their bodies and their lives.
To allow a State to exert control over one of “the most intimate and personal choices” a woman may make is not only to affect the course of her life, monumental as those effects might be. It is to alter her “views of [herself]” and her understanding of her “place in society” as someone with the recognized dignity and authority to make these choices. Women have relied on Roe and Casey in this way for 50 years. Many have never known anything else. When Roe and Casey disappear, the loss of power, control, and dignity will be immense.
One way in which the picture in 2022 is fundamentally different than it was in 1973 is the availability of safe, at-home options for terminating pregnancies. The two-drug cocktail commonly referred to as “the pill” is already estimated to be the method of choice in over half of all abortions in the United States. That figure will surely rise. Advocacy organizations and states that will continue to preserve the right to an abortion have been preparing for this day, including by bolstering systems for ensuring that women who live in our newly minted Republics of Gilead1 can get a hold of those drugs, or otherwise access abortion services. That’s the less bad news. The worse news is that, as advocates and providers have been warning about, new technologies, including the widespread use of period-tracking apps, could facilitate a monstrous new type of surveillance and repression.
And as with so much else, these laws will have a disproportionately negative impact on the poor, who will have fewer means to travel out of state to get an abortion elsewhere, as well less access to or knowledge of other options, including the pill. Many such women may not know they are pregnant until after ten weeks, when these drugs are no longer safe to use. After that, they will face the daunting task of trying to connect to networks that can actually help them travel the hundreds of miles that, in many cases, will be necessary to access the procedure. And they will have to do so in the face of the banning states’ extraordinary attempt to criminalize interstate travel for the purpose.
Faced with the undeniable fact that this new state of affairs will result in more Americans of limited means having "unwanted” babies, which conservatives have long condemned as examples of the failure of liberal social policy and the welfare state, the anti-abortion crowd has come up with a new talking point. The New York Times’ Ross Douthat, for example, said he hoped that southern states could now be “prodded into more generous social policies.” In Douthat’s case, I think he’s just sincerely delusional. Others are speaking in bad faith. For example, Mississippi Governor Tate Reeves promised that "we will take every step necessary to support mothers and children." That is, in a word, bullshit. Compounding the deleterious effects of this ruling is the fact that the states, particularly in the South, where there will be an almost total ban are also the places with the most miserly social policies. Mississippi, you may recall, is among the dozen states that has rejected Medicaid expansion.
Mark Joseph Stern outlines well the one-two punch of the tethering of anti-abortion fundamentalism to the right wing’s larger social agenda:
Those policies, according to the dissenting Justices make child birth in Mississippi especially risky: “it is approximately 75 times more dangerous for a woman in the State to carry a baby to term than to have an abortion.” All of this will worsen now, and as one final “kicker,” its disproportionately adverse impact will be most felt in the region of the country, including Mississippi, with the highest proportion of Black residents, and the highest concentrations of Black poverty.
On top of it all, this ruling may augur a larger rollback of rights. Justice Alito insisted that the end of Roe does not implicate other fundamental rights, including the freedom to marry, or the right to privacy itself. In a concurrence, Justice Thomas expressed strong support for overturning those precedents. None of the other Justices in the majority signed onto Thomas’ radicalism. But Justices Gorsuch and Kavanaugh, notably, repeatedly asserted during their confirmation processes that Roe was “settled law.” Anyone with half a brain knew they were lying then. And there is good reason not to take them at their word now. The end of Roe marks a disastrous close to one chapter in the long struggle for the rights of the historically marginalized in the United States. It may also be just the opening of another.
For those who don’t know, it’s a reference to the dystopia in The Handmaid’s Tale
Great points. Alas, the GOP is actually pro-fetus, not pro-life and in some of the deep South states in particular, there's going to be very, very bad consequences for new mothers and unwanted babies where the states do the least to ameliorate the difficulties.