Handbook for a Post-Roe America

blog — January 16

An excerpt from Handbook for a Post-Roe America

Where We Are Now and How We Got Here

How Did We Get Here?

On January 22, 1973, the United States Supreme Court ruled in a 7–2 decision known as Roe v. Wade that a pregnant person has the constitutional right to an abortion under that person’s right to privacy. The ruling struck down all state abortion bans as unconstitutional, ending what was a growing patchwork of abortion legality that changed from state to state, ranging from legal in all circumstances to no abortion whatsoever.

The victory didn’t last long. While the framework of Roe required that each state must make abortion legal until the point of fetal viability (then assumed to be at around twenty-eight weeks’ gestation, or by the beginning of the third trimester), and after that if the pregnancy poses a threat to the pregnant person’s health, state and federal legislators immediately jumped in to see how quickly they could limit that decision with restrictions to the procedure itself.

The biggest, earliest blow was the federal Hyde Amendment, introduced by Illinois Republican congressman Henry Hyde. Hyde, who was virulently opposed to abortion, proposed making it illegal for Medicaid to cover any abortions that were not medically indicated to save the life of a pregnant person. At the time, he said, “I certainly would like to prevent, if I could legally, anybody having an abortion, a rich woman, a middle-class woman, or a poor woman. Unfortunately, the only vehicle available is the . . . Medicaid bill.” That was 1976, and the amendment has been reaffirmed every year since, with a rape exception (the ability to obtain an abortion if a person becomes pregnant as a result of a sexual assault) being the only change to the ban.

This targeting of the poor has had the greatest impact on pregnant people of color. Because of deep-rooted and systemic racial inequality, they are far more likely to be using government insurance, and hence more likely to be blocked from obtaining abortion care without large out-of-pocket costs. As a result, approximately one in four pregnant Medicaid users seeking to terminate end up carrying to term simply because the financial burden is too great. Meanwhile, abortion opponents celebrate the “life-saving work” of the Hyde Amendment, referring to the increase in the birthrate among those on Medicaid that occurred in the decades since the amendment passed, the clear sign that the amendment served its purpose in blocking the poor from obtaining wanted abortions because of the insurmountable costs.

But passing the federal Hyde Amendment was just the first step. States also began restricting abortion access, creating barriers such as mandatory waiting periods, attempted gestational bans halfway through pregnancy, requirements on where abortions could be performed and who could perform them, parental notification requirements for minors seeking care, and even a rule requiring a wife to get permission from her husband to terminate a pregnancy.

It was this influx of rules that worked its way up to the Supreme Court in the 1992 case Planned Parenthood v. Casey, and led to the current trimester system and the idea of “undue burden.” In the Casey decision, the Supreme Court ruled that states cannot ban abortion outright in the first trimester, although they can put laws in place if those laws are meant to protect the health and well-being of the person trying to end the pregnancy. In the second trimester, restrictions can be more involved and must balance the rights of the pregnant person with the growing interests of the fetus. By the third trimester—post–fetal viability—abortion should only be allowed in cases that protect the health of the person who is pregnant. And all of these rules should not place an “undue burden” on one’s ability to obtain an abortion in the first place.

“Undue burden” became a term that abortion opponents decided to push to the limit. Beginning slowly, they proposed incremental state laws such as parental notification and consent requirements for minors seeking terminations, and “informed consent” bills with a mandatory waiting period between receiving information about the abortion from the clinic and the actual procedure—a process that was often allowed to be completed over the phone rather than face-to-face with clinic staff when first introduced. These incremental bills didn’t cause immediate hardship for the majority of abortion seekers (although they did begin the process of creating ever higher hurdles for the young and the poor). Instead, they set the stage for drawing out how long it takes to schedule, travel, and obtain an actual abortion, and for introducing false or questionable “facts” as part of the medical process.

Then in 2011 everything shifted. Fresh off the Tea Party’s sweep of the Congress and state legislatures, model legislation crafted by anti-abortion groups like Americans United for Life and National Right to Life spread across the country and passed—primarily in red states and areas already suffering from a lack of clinic access. These bills—twenty-week abortion bans, six-week heartbeat bans, bans on second-trimester dilation and evacuation (D&E) abortions, mandatory waiting periods  (allegedly to offer that person a chance to potentially change their mind) that stretch seventy-two hours or longer and must be done in person, requiring multiple trips to a clinic, medication abortion bans, admitting privileges requirements mandating a clinic or a doctor providing abortions must have a relationship with a local hospital in case of a patient complication (a rule that often shuts down clinics because no hospital will work with them, either for legal reasons or for fear of protests), and even total abortion bans from the moment of conception—have proliferated year after year, cumulating in more than four hundred restrictions in the last eight years alone.

The Right has two goals. First, they want to bring at least one of these model bills to the Supreme Court in order to overturn Roe and let states have the ability to make abortion illegal within their borders. Second, they want to try to get enough political power to control the House, Senate, White House, and two-thirds of the state legislatures all at the same time, so they can create and ratify an amendment to the US Constitution that declares “personhood” and the right to life begin at the moment of conception, banning all abortion (and possibly hormonal birth control) throughout the country.

This book primarily addresses the first scenario, although some chapters can serve as a resource for the second one, too. But if we do eventually end up in a country where people can no longer end or even prevent unwanted pregnancies, we will need more than a handbook—we will need an outright revolution.

What Will Happen Next?

For the immediate future, now that we have a new ultra-conservative majority on the Supreme Court due to the confirmation of Justice Brett Kavanaugh, there are four ways—three likely and one unlikely—that the reduction or even end of legal abortion access in the US may work out. Here are all of the scenarios.

Likely

A case makes it to the Supreme Court within the next few years that allows the bench to overturn Roe, and they do.

There are already a number of cases in lower state courts and appeals circuits that could be reviewed at the SCOTUS level, allowing the court to rule on the issue in the very near future. Plus, if a federal twenty-week abortion ban were passed and signed into law, it would immediately be sent to the Supreme Court for review if anyone chose to challenge it.

If the court rules that abortion legality should be left to the states to decide through any of these cases, that ends Roe and allows the trigger laws (laws on the books in certain states that immediately make abortion illegal if Roe is overturned) to go into effect, and opens the door for total bans in other states.

The Supreme Court rules that there is still a constitutional right to an abortion, but that the viability standard is outdated and “fetal pain” should be the new standard.

If a state or federal twenty-week ban (twenty weeks into pregnancy being the point at which abortion opponents claim a fetus can “feel pain” in the womb, although the vast majority of medical experts disagrees with that statement) is heard by the court, the conservatives could rule that “fetal pain” makes a better point in the pregnancy at which a fetus’s right to life outweighs the rights of the person carrying it to terminate, undoing the “viability” standard that has been in place since Roe but still technically leaving abortion legal.

If this happens, anti-abortion policy makers and legislators are prepared to pass bills stating that fetal pain actually begins far earlier in the pregnancy, as early as six weeks’ gestation. This will allow states to effectively ban abortion if they choose to, without actually violating the constitutional right to an abortion.

States pass any laws they want—but don’t actually ban abortion completely—and the Supreme Court lets them.

There’s also the possibility that the court will simply refuse to hear any cases involving abortion whatsoever, going utterly silent on the issue. Because the state and federal judiciaries have been packed with conservative justices, especially since President Donald Trump was elected, states could very easily decide to pass the most restrictive laws they can short of an outright ban, and as long as a federal judge sides with them and the Supreme Court refuses to hear a challenge, they will stay in place.

In many ways this could be a very appealing scenario for conservative politicians, allowing some states to ban abortion without the potential blowback from voters that would come from putting a full ban in place. If a restriction is so limiting that no clinics are left open, abortion is no longer available in that state even if it is technically legal. If a state bans abortion after a heartbeat can be heard, but clinics will not do a termination before that point because they need to be sure there is enough development visible to ensure it is not ectopic, that ends abortion. All SCOTUS needs to do is refuse to do anything at all.

Unlikely but Still Possible

The court could hear an abortion case and decide that the Fourteenth Amendment guarantees a right to life to all and that outweighs the right to privacy found in Roe. Abortion is now illegal everywhere.

This one seems the least likely, as it would be too much of a change too fast and would guarantee the end of the GOP as a political power. It could happen eventually, but not unless the Republican Party gets to a point where it is so embedded in its majorities that it never needs to fear reelection again.

What Does This Mean for the Clinics Left Behind?

With the clinics that do remain, being able to book an appointment will be more difficult than ever. In Texas, when clinics closed because of the passage of the Texas Omnibus Abortion Bill (HB 2), which required all abortion providers to have local hospital admitting privileges, those few remaining clinics that could still operate were telling patients of wait times of up to a month before they could come in to end a pregnancy. While some of those clinics reopened after the Supreme Court ruled HB 2 was an undue burden on the right to an abortion, that period is a stark foreshadowing of what America could look like post-Roe.

Plus, if abortion is only available in certain states, abortion opponents will increase their presence at those clinics that do remain, hoping to close them one by one. With fewer clinics to concentrate on, the “sidewalk counseling,” protests, street preaching, and monitoring for alleged medical violations will increase in frequency, especially in states bordering those where abortion is illegal.

That also means that it will be far more difficult for those patients who need care to get inside. Besides the sea of bodies that encircles some abortion clinics currently—made up of both those who oppose abortion and those who are trying to help a patient access a clinic—an increased presence of protesters can often bring additional security or police, a situation that creates a far more volatile environment for those who are undocumented, who are of communities of color, or who have other reasons to mistrust officers. Escorts have reported experiences with patients who were afraid to enter clinics, worried that the law enforcement that was outside attempting to maintain order in more aggressive protests was actually there to search or arrest patients. For some patients, the presence of security can be just as intimidating as a screaming preacher or a gory abortion photo.

We will discuss the efforts of protesters at clinics later in the book.

What Happens When Abortion Is Illegal?

Abortion opponents frequently say it is overblown to claim that making abortion illegal puts those who can become pregnant in physical danger. You can expect them to consistently bring up Ireland having one of the lowest maternal mortality rates in the world despite decades under a total abortion ban (a ban that the general population overwhelmingly voted to toss out in a national referendum in 2018).

What the anti-abortion advocates ignore is that in Ireland, people frequently obtained abortions despite the ban, either by leaving to get a termination across the border in a country with less restrictive laws, or by obtaining medication through the mail to terminate in private. It was only those who could not do so—immigrants who couldn’t leave the country, the poor, those trying to hide their pregnancies from partners or family members—who were forced to carry to term.

That same trend occurs throughout the world when it comes to abortion being illegal—it does not stop people from seeking it, it only divides them into those who have the resources to find a safe abortion where it is legal, and those who attempt illegal abortions with a variety of success.

According to the Guttmacher Institute, an international reproductive rights policy nonprofit, in Latin America and the Caribbean, where abortion is highly restricted or completely illegal in nearly every country, an estimated 6.5 million abortions still occur every year, at a rate of 44 per 1,000 women. Of those abortions, only one-fourth are considered “safe” abortions—i.e., abortions conducted using World Health Organization (WHO) protocols and carried out by trained providers. There are on average approximately 760,000 complications from unsafe abortions per year, and in 2014 approximately 10 percent of maternal deaths in that region (900 fatalities) were caused by unsafe abortions.

Lack of access to safe, legal abortion does and will continue to kill those who have unwanted pregnancies—and it will be marginalized communities lacking the financial resources to find alternative methods that will suffer the most. Removing abortion restrictions and other barriers—especially financial ones—so people can terminate in trained medical settings if they choose to is always the best option, and the one we should be fighting for. But there are also ways to make obtaining abortions outside a medical setting safer, both physically and legally, and we will discuss these later in the book.