An America without ‘Roe’ figures to be a dark place
A 26-year-old Texas woman named Lizelle Herrera was arrested and charged with murder last month following an alleged self-induced abortion. It was only after Herrera spent two days in jail and, amid a national uproar, was released on $500,000 bond that the local district attorney concluded she had committed no crime.
Texas banned most abortions with Senate Bill 8, the infamous bounty law that went into effect in September — but SB 8 is enforced by lawsuits, not criminal penalties. Besides, it doesn’t apply to women having abortions, only those who aid them.
The district attorney had jumped the gun. Herrera went free because
Roe v. Wade still stood, even in an attenuated condition. Soon, it won’t.
At least, it won’t if the leaked draft majority Supreme Court opinion that Politico published Monday night ends up being issued. The 98-page document, written by the arch-conservative Justice Samuel Alito, is a caustic repudiation of Roe and of the 1992 decision partly upholding it, Planned Parenthood v. Casey.
“Roe was egregiously wrong from the start,” Alito writes in the draft.
“Its reasoning was exceptionally weak, and the decision has had damaging consequences.”
Should the decision be handed down as written, states will be able to ban abortion from the moment of conception. “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey,” the draft ruling says. “And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”
So abortion will probably soon be illegal in around half the states. Some women will be forced to give birth against their will. Some will travel to states where abortion remains legal. Some will have illegal abortions. Some women will end up in prison. Some, facing pregnancy complications, will see necessary treatment postponed. Some will die.
Before Roe, women were rarely prosecuted for abortion, though they were sometimes threatened with prosecution to get them to testify against abortion providers. Now, however, we’ve had decades of anti-abortion laws defining fetuses as legal persons. Women accused of harming their fetuses by doing drugs or attempting suicide have already been arrested and in some cases imprisoned.
Roe meant that fetal endangerment and fetal homicide laws didn’t apply to women having abortions. Once it’s gone, women who terminate their pregnancies are likely to be treated as killers.
In the years before Roe, even where abortion was illegal, doctors usually had some latitude to decide when it was justifiable to perform one. Today, when the populist right widely distrusts medical and scientific experts, legislatures are giving doctors less flexibility. Several states have passed laws that allow doctors to terminate only pregnancies that imperil a woman’s life or threaten “substantial and irreversible impairment of a major bodily function.”
The best argument for legal abortion is often the real-world effect of abortion prohibitions.
But by the time the backlash to such laws generates enough momentum for reform, many women’s lives will be ruined.
The 2016 election, which allowed Donald Trump to reshape the Supreme Court, was, among other things, a referendum on women’s equality. Women’s equality lost.