Roe v. Wade may not be dead, but it appears to be terminally ill, with a life expectancy of less than two months. So supporters of abortion rights, including me, are confronted with the grim prospect of returning to the bad old days when abortion was illegal in most of America and many women were forced to travel out of state to end their pregnancies. But we shouldn’t be so optimistic.
Abortion rights opponents have long averred that they only want the issue returned to the states. By establishing a constitutional right to abortion, they complained, the Supreme Court imposed a uniform policy at odds with our system of federalism. What suits New Yorkers may not suit Nebraskans. Overturning Roe would allow people in each state to have their way.
Justice Samuel Alito’s draft opinion overturning the 1973 decision followed this reasoning. The case at hand concerns Mississippi’s ban on any abortion after 15 weeks of pregnancy.
The state, he noted, asked the court to overturn Roe “and once again allow each State to regulate abortion as its citizens wish.”
Alito — along with four other justices, it appears — is eager to grant that request. “Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated,” he wrote.
It’s always been taken for granted that if Roe were struck down, abortion would remain available in many states — and women elsewhere would be able to travel to get legal abortions. But neither may be true for long. Having won at the Supreme Court, and in many states, abortion rights opponents are bound to press for even broader bans than those that existed before 1973.
The first option surfaced recently in Missouri, which has passed a “trigger” law to ban abortion after eight weeks of gestation, with no exceptions for rape or incest. It would take effect when Roe is jettisoned. Republican Rep. Mary Elizabeth Coleman, however, is not content to ban the vast majority of abortions in Missouri.
At the moment, women in her state can drive across the Mississippi River to Illinois, where abortion is strictly protected, to end their pregnancies. Coleman, however, proposed to authorize lawsuits against anyone helping a woman get an abortion — even in another state. The Illinois exit would be closed and locked.
Her measure failed, but it is safe to wager that some other states will take the idea and make it law. Women in those states would find themselves in a pregnancy prison: barred from getting an abortion at home and barred from getting one somewhere else.
That outcome, however, is not the direst scenario. Republicans have long opposed giving women the right to decide whether to carry their pregnancies to term, and they are not likely to be content with banning abortion in some states. The Supreme Court’s reversal would mean abortion could also be banned in every state, through a federal law.
That once seemed impossible. Not today. Republicans are poised to win both houses of Congress in November. If they control Congress and elect a Republican president in 2024, they will have the power to eradicate legal abortion in every corner of America.
Would they do so? Maybe not. The availability of legal abortion in blue states softens the harsh impact of bans in red states. It assures women with financial resources that, should they ever want an abortion, they would be able to get it. A federal ban would provoke wider opposition by depriving every woman of any choice.
But whether that possibility would deter a Republican Congress and president is far from certain. Most Americans don’t want to outlaw abortion, but the people who do are far more engaged and far better organized than the ones who don’t. Unless more pro-choice voters make the issue their highest priority — as their adversaries have done — they will keep losing ground.
There is plenty of ground to be lost. The logic of the anti-abortion cause is that anything that saves fetuses is not only commendable but imperative. Any Republican state legislator who is not willing to ban out-of-state abortions, and any Republican member of Congress who is not willing to outlaw abortion everywhere, will face a simple, stark question: Why not?
For the anti-abortion movement, the demise of Roe is not an end but a beginning. Abortion rights supporters who see the looming demise of Roe as the ultimate nightmare will soon realize that the worst is yet to come.