Will U.S. Supreme Court create nation of lawbreakers?
The leak of a draft majority opinion by Justice Samuel Alito suggests that the US Supreme Court is about to overturn Roe v. Wade, the 1973 decision recognizing a constitutional right to abortion.
If it does, the Court will create a nation of lawbreakers, because many women will simply evade or violate restrictive state abortion laws. But it will also create an even more unequal society, because poor women with unwanted pregnancies will have far fewer options than their wealthier counterparts.
I know this because I have studied the actual impact of Supreme Court decisions on abortion access for four decades. Between the Roe decision and 2017 (the last year for which there are reliable numbers), more than 58 million abortions were performed in the US.
The Guttmacher Institute, which collects and reports the most reliable abortion data, estimates that one in four American women will have an abortion over the span of their reproductive years.
Given these figures, it is no wonder that nearly two-thirds of Americans support retaining the constitutional protection that Roe provides.
If Roe is overruled, many states will rush to impose severe restrictions or complete bans on abortion. Thirteen states have so-called “trigger laws” that will automatically go into force, and at least a dozen others will move to pass new legislation almost immediately. And yet decades of data show that these new restrictions will not prevent women in those states from terminating unwanted pregnancies.
In 1972, the year before Roe was decided, nearly 600,000 legal abortions – and likely hundreds of thousands of illegal procedures – were performed in the US. Today, it’s estimated that more than 750,000 women have abortions every year. Overturning Roe will not reduce the demand for abortion services nor the willingness of women to take extraordinary steps to terminate unwanted pregnancies.
But overturning Roe will not only fail to end abortion. Mass evasion of state restrictions by hundreds of thousands of women each year will make a mockery of the law.
Tens of thousands already travel across state lines each year to secure access to abortion services, and abortion clinics in states such as California, Illinois, and New York are already raising funds and making plans to serve out-of-state patients.
Moreover, a growing list of major corporations – including Amazon, Apple, Citigroup, and Tesla – are including travel assistance for medical care as part of their employee benefits. And some states where abortion will remain legal are considering providing funds to provide financial support for women from restrictive states.
In response, some anti-abortion states are threatening to make it illegal for women to cross state lines to seek an abortion, or for others to help them do so.
But how would a state government enforce such laws? Will the police stop every car crossing the state line? Will states try to extradite residents of other states who help women obtain legal abortions? Even if they tried, would juries convict?
Given majority public support for abortion access, it is hard to imagine that anti-abortion states will have much success stopping women from traveling to terminate their pregnancies.
Safe
As for women who can’t afford to travel elsewhere, they, too, may still be able to obtain safe, albeit illegal, abortions. In the last decade, there has been a dramatic increase in “medication abortions,” whereby an unwanted pregnancy is terminated simply by taking two drugs, mifepristone and misoprostol.
The FDA has found these drugs to be safe and effective if taken within the first ten weeks of pregnancy. As such, more than half of all abortions in the United States today are medication abortions.
Although some states may make obtaining and using these drugs illegal, medication abortions often take place in the privacy of women’s homes. The pills are available either from doctors and abortion clinics in states where abortion is protected, through telemedicine where allowed, or by mail from other countries.
There are already groups in both Mexico and Europe that write prescriptions for abortion pills that are then sent to the US from India, and underground groups providing the pills to women in need are likely to emerge.
While states may try to stop the importation and distribution of abortion pills, America’s inability to stop the importation of illegal drugs such as cocaine suggests they will have a hard time doing so.
In addition to encouraging lawbreaking, overturning Roe will weaken democracy, because state bans on abortion will impose a disproportionately large burden on poor women, often of color. These women may lack the time and resources to find childcare, travel to another state, arrange accommodations, obtain abortion pills, or pay for abortion services.
The Supreme Court will have made life even more difficult for the most vulnerable women in American society, reinforcing the growing belief that the system works only for the wealthy.
If the Court overturns Roe, it will create a nation of lawbreakers and increased inequality. The justices should think again before making their draft opinion final.
Gerald N. Rosenberg, a former professor of political science and law at the University of Chicago, is the author of The Hollow Hope: Can Courts Bring About Social Change? (University of Chicago Press, 2008).