The prospect of the overturn of Roe v. Wade—which the U.S. Supreme Court confirmation struggle over Judge Neil Gorsuch is highlighting—is terrifying to many, especially to those who remember the notorious pre-Roe days. It is also a real possibility, should President Donald Trump have the opportunity for another nomination, one that would replace a liberal judge with a “pro-life” one, as he pledged to do during the campaign. But if Roe falls, women may not face the same kinds of physical dangers from seeking abortion as in previous decades. Instead, however, I predict there will be far more criminal prosecutions of those involved in illegal abortion.
If Roe is overturned, the most likely immediate consequence would be that individual state legislatures would decide whether or not to allow abortions. According to legal analysts at the Center for Reproductive Rights, some 34 states are at risk of banning abortions, largely in the Midwest and South. About 40 million women live in those states. Predictably, many women seeking abortions will have to travel, paying not only for the procedure, but for transportation, lodging, and babysitters (nearly 60 percent of abortion patients already have children). These travelers, of course, may also lose wages for the time spent away from their jobs. One can safely assume that many won’t be able to afford an out-of-state option, as abortion patients are disproportionately among the poorest women in society.
Therefore, there will likely be a considerable increase in self-induced abortion. (In fact, such an increase is already occurring in the United States, as access to abortion is so difficult in many areas due to restrictive legislation and clinics being closed.)
What might we expect then? Will the abortion landscape resemble the pre-Roe days, when some scholars estimate that approximately 5,000 women per year died from illegal abortion in the 1960s, and tens of thousands more were injured?
If there is a second large wave of illegal abortion, a similar kind of danger is questionable. This is because of changes in abortion technology that have occurred since legalization. Pre-Roe, many women attempted to self-induce abortion by drinking dangerous substances such as turpentine and lye, and inserting various objects into their cervixes, including the infamous coat hangers. When they went to others—whether a medical provider or layperson—one of the main methods used was dilation and curettage, or the scraping of the uterus. In untrained hands, this was very risky.
Today, however, there is another method of pregnancy termination: “medication abortion,” which is in wide use in the United States and elsewhere. This method actually involves two drugs: mifepristone, formerly known as “RU-486,” which causes a fetus to stop growing, and misoprostol, a drug with several medical uses, which causes the cervix to open and the uterus to contract. Medication abortion is used both legally and extra-legally: Both mifepristone and misoprostol can be obtained over the internet, and misoprostol is available over the counter in many pharmacies in Latin America (and in flea markets in the United States).
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To be sure, these drugs are not always 100 percent effective in ending a pregnancy. When they are ordered over the internet, the products are not always authentic or reliable, and misoprostol, often used alone because it is easier to get, is not quite as effective as the two-drug regimen. But even when ineffective, they are not usually dangerous. Some tragedies will inevitably happen with a large-scale return of illegal abortion, particularly among the young and most desperate, and among those who discover their pregnancies too late to use the medication abortion regime, which is largely recommended for use only through 10 weeks of pregnancy. Overall, though, women will not face the same kinds of death and injury as occurred before the Roe decision.
What will likely be different, however, is the degree of criminalization facing both women who attempt illegal abortions, and any providers or advocates who try to help them. Given the number of illegal abortions that took place before Roe (slightly more than 1 million per year in some estimates), it is striking in retrospect how relatively few prosecutions and jail sentences there were. This is not to suggest, however, that women who sought abortions and doctors and others who provided them were not terrified of being caught, as there was always the possibility of jail time, the loss of medical licenses for doctors, and public shame for both.
Today, though, anyone involved in illegal abortion would face a very different legal and political environment. In fact, even as Roe remains the law of the land, women have recently been jailed for attempting self-induced abortions. The Self-induced Abortion Legal Team has identified 17 known arrests or convictions in connection with alleged self-induced abortion since 2005.
There is already intense scrutiny and sometimes criminalization of pregnant women in the United States—and not only of those seeking abortions. This surveillance is made shockingly evident in a 2013 report by researchers from the National Advocates for Pregnant Women and Fordham University, which tabulated hundreds of cases of pregnant women arrested since Roe for various reasons. In a particularly bizarre 2010 case, an Iowa woman who accidentally fell down a flight of stairs and sought help at a hospital was reported to police and arrested for “attempted fetal homicide.”
The main reason for this predicted difference in punishment before and after Roe is that in the earlier era, there was not in place anything resembling the national anti-choice movement of today. Prosecution before Roe was very idiosyncratic, dependent on local factors. But if Roe falls, criminal justice officials, from the virulently anti-choice Attorney General Jeff Sessions on down to local police and district attorneys in many jurisdictions, can be expected to avidly pursue those who break the law.
When Donald Trump, shortly after his election, was asked by a journalist about what the possible overturning of Roe would mean for American women who sought abortions, he casually answered, “Well … they’ll have to go to another state.” Yes, Mr. President, some will go to other states, but many others might go to jail.