Anti-choice activists have never hid the fact that they want Roe v. Wade overturned. Now, 42 years after that landmark decision, with legal challenges to pre-viability abortion bans from states like North Dakota and Arkansas circulating in the federal courts, Republicans in Congress intent on passing similar federal restrictions, and an anti-choice majority on the Supreme Court, their wish has never been more likely to come true. That’s a terrifying thought, yes, but can we honestly say we’d notice?
If Roe were overturned and states suddenly had the power to re-criminalize abortion, would clinics be forced to close overnight? If the implementation of HB 2 in Texas is any indication, that answer is yes, at least in many parts of the country. States like Louisiana, Mississippi, North Dakota, and South Dakota already have laws on the books that would automatically criminalize abortion should the decision be overturned. Meanwhile, 11 other states, including Arkansas and Wisconsin, have pre-Roe laws criminalizing abortion that are still technically in effect and could be resuscitated following a reversal.
Would women face prosecution for stillbirths? Well, jury selection begins this week in the case of Purvi Patel, an Indiana woman facing contradictory felony charges of neglect of a dependent and feticide after Patel admitted to hospital staff that she’d delivered a fetus she believed to be stillborn. So that’s already happening.
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In fact, it’s hard to think of one of the many nightmare scenarios of what life would be like in a post-Roe world that isn’t already taking place somewhere in this country. As of 2013, according to the Guttmacher Institute, more than half of the states qualify as “hostile” to abortion rights, meaning they have at least four reproductive health-care restrictions on the books. Meanwhile, a federal appeals court is currently giving serious consideration to the argument that fetal viability begins at conception, because during in vitro fertilization a fertilized egg can “survive” on its own for a few days prior to implantation.
It’s worth noting that if the federal appeals court buys that argument, it would set the stage for the Supreme Court to revisit Roe v. Wade—and possibly reverse it for good.
“Respect for human life finds an ultimate expression in the bond of love the mother has for her child,” wrote Justice Anthony Kennedy in Gonzales v. Carhart, the 2007 Roberts Court decision that upheld the federal ban on “partial birth abortions” by granting lawmakers the latitude to “pick sides” on matters that they determine to be in “scientific dispute,” like when a fetus can feel pain or if abortions cause cancer.
“While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained,” Kennedy wrote.
Forty-two years after Roe v. Wade, it’s Justice Kennedy’s infamous “abortion-regret” passage from Gonzales that perfectly sums up the state of abortion rights jurisprudence in the federal courts today. Instead of decisions grounded in science and fact, the courts continue to reinforce motherhood as some mystical state of being—a “phenomenon,” to borrow Justice Kennedy’s words, that defies measurability by “reliable data.”
In other words, celebrating the anniversary of Roe v. Wade is tricky business. Before Roe, 30 states criminalized abortion outright while others, like Washington and New York, had much more liberal access to abortion services. On the one hand, the decision remains a historic recognition of the fundamental legal autonomy of women and the limits on state power to regulate our most private areas of life. On the other, abortion-rights advocates today face a largely hostile and conservative federal judiciary, which appears more willing than ever to roll back all historic civil rights achievements, including reproductive rights.
The abortion-rights landscape is an ever-shrinking map of concentrated access in urban centers and “blue” states. Thanks to the Hyde Amendment, poverty remains a primary indicator of who can and cannot access abortion care in this country. And thanks to decades of targeted campaigns by anti-abortion radicals who disguise themselves as soft-spoken grannies looking to counsel lost, wayward patients, providers must navigate increasingly treacherous waters just to do their jobs.
When I look at the myriad efforts by anti-choice advocates to undermine abortion rights—everything from “personhood” measures dressed up as so-called heartbeat bans, to restrictions on medication abortions that jail women like Jennifer Whalen, to attacks on family planning services and contraception access—I no longer see Roe v. Wade as a tale of victory for abortion rights. Instead, I see it as a tale of caution: Just because the courts say the right to an abortion exists does not make it so.
Instead of expanding on the basic premise of Roe—that no state has the power to make the ultimate determination for whether a woman continues a pregnancy—the federal courts have spent the last 40 years limiting that premise and endorsing obstacles like the above, which place abortion access out of reach for most of the country. Instead of creating a Roe doctrine that builds on that decision and recognizes the fundamental right to be free from state-compelled pregnancy, the federal courts have created a Roe hypothesis, where a right to abortion exists in theory with no discernible way to access it in reality. Instead of fully embracing women’s legal autonomy, they opened for debate the merits of rape exclusions in abortion bans and reinforced the social stigma surrounding all women’s sexual and reproductive health-care decisions, but especially abortion.
It’s not that this country risks going back to the patchwork of laws in place before Roe. It’s that, in too many ways, we never left.