As reproductive rights organizers have long anticipated — and as a leaked memo all but confirmed last month — the Supreme Court has ruled to overturn Roe v. Wade and Planned Parenthood v. Casey.
The decision came in Dobbs v. Jackson Women’s Health Organization, which involves a Mississippi law prohibiting all abortions after 15 weeks except in the case of medical emergency or severe fetal abnormality. This suit is part of an effort by the right to legally challenge what was previously the constitutionally protected right to abortion in Roe, and the court has sided with the state of Mississippi to repeal that right. This ruling undoes the federal protection of abortion, resulting in the total or near-total ban of abortion in 26 states.
The right has long been organizing for this moment, creating “trigger bans” in expectation of Roe’s overturn, as well as mobilizing to harass and intimidate patients in places where abortion remains legal, like New York and Washington, D.C. Republicans are poised to attempt passing a federal ban on abortion.
Despite Justice Samuel Alito’s claim that the ruling does not affect contraceptive access, the anti-abortion right has also opposed hormonal contraception, the copper IUD and the morning-after pill on the grounds that they are “abortifacients” since from their perspective, human life begins at conception and these methods prevent the fertilized egg from implanting. Last month, Louisiana lawmakers deliberated over a bill which would have criminalized both the IUD and the morning-after pill. The bill ultimately failed, but we can expect to see similar initiatives gaining ground in states hostile to abortion rights.
The anti-abortion right frames the overturn of Roe as an act of democracy, “returning the decision to the states,” and correcting federal overreach. This is misleading at best. The states in which abortion is now illegal are heavily gerrymandered and undemocratic themselves; it is simply not true that abortion bans reflect the will of the people. In fact, a majority of Americans — about 60 percent — believe abortion should be legal in all or most cases.
The consequences of abortion restrictions in red states prior to this moment have been disastrous as residents have been forced to travel out of state to access care at significant personal cost. Texas’s notorious Senate Bill 8 law resulted in a significant number of patients from Texas with a gestational age past six weeks traveling to Oklahoma for abortion appointments — until Oklahoma passed a total abortion ban, leaving Texans seeking abortions with even fewer options.
We can expect this situation to spread further across the country, with abortion patients forced to travel even longer distances to access abortion. Of course, this will place an undue hardship on patients without the means to travel out of state — whether that be due to the financial burden, lack of access to child care, sick leave, or other reasons.
More grotesquely, abortion patients will not only have to face undue financial and logistical hurdles to access essential health care — but they will also have to brave the police, or in some cases, state-funded vigilantes, in order to do so. Texas’s SB 8 law allows literally anyone to file suit against someone who “aids or abets” in an abortion — though not the abortion patient themselves. Someone who drives a patient to a bus so that they can receive an abortion out of state could be sued, and the plaintiff would be awarded $10,000 in damages. Abortion patients themselves cannot be sued.
While the law has been carefully designed so that there is no criminal penalty — and thus, ironically, protecting it from certain legal challenges — it still invites police violence against abortion patients. Recently, 26-year-old Lizelle Herrera of South Texas was arrested and detained under suspicion of having induced her own abortion after a stillbirth. Even if the states that criminalize abortion only penalize providers and those who “aid and abet” abortion, patients themselves can still be subject to police violence in cases of self-managed abortions, which will become the only recourse available to many patients who cannot travel out of state to a clinic. Although only a handful of states currently criminalize self-managed abortion specifically, in over half the states there have been criminal investigations into pregnancy loss based on suspicion of self-managed abortion. People from communities that experience heightened levels of policing and state surveillance and who choose to self-manage their abortions will be at an increased risk of criminalization.
Even when abortion patients manage to reach less-restricted states, safe and unfettered abortion access in those places is by no means a given either. Many clinics are already functioning at capacity even before the heightened influx of patients from other states, and the anti-abortion movement has set its eyes on cities like New York. Their base has been galvanized to confront “the evil of abortion” at its center — the clinics where abortions happen. When abortion is halted in over half the states, we can expect that campaigns of harassment will expand at clinics in less-restricted states by anti-abortion groups shifting their focus to regions where abortions are still performed legally.
In New York City, the Archdiocese leads a campaign of clinic harassment every month in all five boroughs — with the blessing and sanction of the police. The police do not help patients enter the clinic safely but escort the clinic harassers — whom they seem to be on friendly terms with — and threaten and intimidate clinic defenders. It is no secret that the police and the far right are closely allied, in some cases one and the same; we cannot count on them to protect abortion patients. We will need a militant response to counter the right in less restricted states.
Moreover, the criminalization of providing abortion care and aiding and abetting abortion puts pregnant people in grave danger. Some states may make “life of the mother” exemptions. But most United States hospitals are either for-profit or religiously affiliated nonprofits with ideological opposition to abortion. There is seldom a clearly demarcated point at which an abortion becomes absolutely, unambiguously medically necessary. A private health care facility may not risk criminal charges in order to save a patient’s life. Notoriously, Savita Halappanavar died of sepsis in an Irish hospital when doctors refused to perform an abortion because, though her pregnancy was no longer viable, a fetal heartbeat was still detected. As of this writing, an American woman, Andrea Prudente, is set to be airlifted out of Malta, the only country in the European Union with a total abortion ban. Even though her pregnancy is no longer viable, and without an abortion, she risks the same fate, a fetal heartbeat is still detected and doctors refuse to provide an abortion. Of course, the U.S. leads the developed world in mortality during childbirth. With the end of Roe, it will become even more dangerous to give birth in the U.S.
Many reproductive rights organizations advise that pro-choice activists put aside “coat hanger” imagery and refrain from dwelling on history of dangerous back-alley abortions. This is not to erase the history of violence that accompanied abortion bans, but because it unproductively obscures the abortion situation as it exists today. Self-managed abortions are safer than ever, thanks to the advent of the abortion pill and networks that provide access through the mail; and even abortions in the home can be performed safely using aspiration. In fact, they are more safe than home births, belying the right-wing canard that abortion and the abortion pill is more dangerous than childbirth. The right uses this lie to push for the closure of clinics and make obtaining the abortion pill unduly burdensome.
However, the secrecy in which abortions have had to happen historically is what made them so dangerous — that people don’t know how such abortions can be performed safely, or even the basic facts of pregnancy (a situation that’s especially dire in red states given a lack of sex education in schools). This secrecy is enforced by the police. Laws against “aiding and abetting abortion” — and the ensuing climate of fear, secrecy, and isolation — are what kill pregnant people, not self-managed abortions.
If we are to resist abortion bans, each one of us must be prepared to aid and abet abortion, whether that’s being trained in administering a self-managed abortion, buying and donating abortion pills, driving someone across state lines to receive an abortion, participating in clinic defense, or donating to an abortion fund. But we cannot lose sight of the ultimate goal: a mass movement to establish free abortion on demand as an inalienable right.
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