America to become dark place post-Roe

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.

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.

Chief Justice John Roberts has confirmed that the draft opinion is authentic but noted that it isn’t final.

Should the decision be handed down as written, states will be able to ban abortion from the moment of conception. This language could also open the door to bans on forms of birth control, like the pill and the IUD, that can prevent the implantation of fertilized eggs.

Perhaps the court’s ultimate decision will be less extreme, though it’s hard to imagine the conservative justices deciding to soften their language in response to liberal outrage. Protesters will continue to mass at the Supreme Court to denounce the decision, but the draft’s language militates against any hint of capitulation.

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; we can expect waiting times to increase as out-of-state patients pour in. Some will have illegal abortions. Some women will end up in prison. Some, facing pregnancy complications, will see necessary treatment postponed. Some will probably die.

As I’ve written before, postRoe America will not look like pre-Roe America. 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. “Determining when abortion was necessary — and thus legal — was left to the medical profession,” wrote historian Leslie Reagan in “When Abortion Was a Crime.”

Today, when the populist right widely distrusts medical and scientific experts, legislatures are giving doctors less flexibility. Women with health-endangering pregnancies may thus have to wait until they are in serious distress before getting the care they need.

This is not theoretical; it’s the sort of thing that happens when there are blanket abortion bans. In 2012 in Ireland, a 31-year-old dentist named Savita Halappanavar died of septicemia after developing an infection during a miscarriage; doctors refused to terminate the pregnancy as long as there was fetal cardiac activity. Halappanavar’s death, The New York Times reported, “set off outrage across the country and gave momentum to a growing call for change,” and in a 2018 referendum, Irish citizens voted overwhelmingly to repeal their country’s strict abortion ban.

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.