Abortion Bans Will Only Get More Punitive From Here

Photo: Jeff Roberson/AP/Shutterstock

Conservative Missouri lawmakers have long had a preference for extremity when it comes to abortion law: The state passed an eight-week ban in 2019, and in arguing against exceptions to restrictions, its politicians are always placing qualifiers such as legitimate and consensual in front of the word rape. But last week, lawmakers outdid themselves, proposing two policies that are stunning in their cruelty. The first is an amendment that would rely on Texas-style, vigilante reporting to block Missourians from leaving the state to get abortions. The second equates providing abortion services — including ordering abortion pills online — with felony drug trafficking, criminalizing the treatment of ectopic pregnancy in the process. If approved, these two measures would make it nearly impossible for people living in Missouri to terminate their pregnancies, in-state or anywhere else.

Even for a legislature that has churned out some of the country’s narrowest abortion laws, this rhetoric is extreme — at least while Roe v. Wade stands. Theoretically, no state should be able to outlaw abortion or place undue burdens on access before viability, around 23 to 24 weeks into pregnancy. Yet with the Supreme Court set to rule on, and expected to uphold, a 15-week ban out of Mississippi, conservative lawmakers anticipate the justices will either overturn Roe or cut out the viability component. According to Mary Ziegler, a law professor and author of Abortion and the Law in America: Roe v. Wade to the Present, last week’s flurry of extravagant restrictions offers a window into that future. The anti-choice movement’s goal has always been to eliminate abortion across the country, Ziegler says, and these latest proposals “are harbingers of what states like Missouri are going to do” to achieve that.

Though a number of states have been experimenting with their own versions of Texas’s six-week ban, Missouri representative Mary Elizabeth Coleman is the first to apply its enforcement mechanism to travel. She appended her amendment, which also outlaws medication abortion, to a number of bills, empowering private citizens to sue anyone they suspect of helping residents terminate in another state. Per the Washington Post, she is targeting a large group, including but not limited to people who staff clinic phone lines, people involved in marketing clinics over the state border, and physicians themselves. Because Missouri has only one abortion clinic left, the majority of patients currently seek care elsewhere; a travel ban would be devastating, particularly given the tandem effort to wipe out medication-abortion services. Shortly after Coleman floated her amendment, Representative Brian Seitz pitched a separate measure, HB 2810, that would make it a crime for any person or entity to knowingly import, make, or in any way administer “abortion-inducing devices or drugs” throughout the state. His legislation places medication abortion — mifepristone and misoprostol, two FDA-approved substances — on par with heroin and other narcotics.

In his bill, Seitz fails to say what qualifies as an “abortion-inducing drug,” an omission that could have broad implications. Some anti-choice activists consider contraception to be abortion inducing, but the most immediate concern is methotrexate, a drug rarely used in abortions and far more commonly used to treat cancers, arthritis, and ectopic pregnancies. In an ectopic pregnancy, a fertilized egg implants outside the uterus, usually on a fallopian tube. Estimated to occur in one out of every 50 pregnancies, they are not viable and cannot become viable, though they can be fatal. Treatment typically involves either methotrexate or laparoscopic surgery. For reasons that are not entirely clear, HB 2810 would make it a class-A felony to perform an abortion on a patient with an ectopic pregnancy — never mind the fact that this is impossible. Abortion means removing a developing pregnancy from the uterus, while an ectopic pregnancy cannot develop because it embeds outside the womb.

Seitz has admitted that he doesn’t actually know what treatment for an ectopic pregnancy entails, which may help explain why his bill makes so little sense. Since filing it, he has claimed that he mainly intends to block pregnant people from ordering abortion pills online — sort of a moot point because Missouri already bans abortion via telemedicine — explaining that the proposed legislation is simply “about protecting life,” which he believes begins at fertilization. Faced with pretty much unilateral criticism, he has insisted that “we are in no way stopping the treatment of ectopic pregnancies,” even as the measure’s broad language leaves the possibility wide open.

In addition to making medically necessary care inaccessible, thereby putting women’s lives in danger, HB 2810 would also enable law enforcement to target people seeking abortions directly: Under the bill’s terms, a pregnant person who tries to order abortion pills online would have committed a felony. In the past, even the most conservative legislatures have been loath to outright punish the person getting the abortion, focusing instead on providers as perpetrators. But without Roe, Ziegler expects that we’ll see them drop the façade. Ziegler points out that in recent years, lawmakers in Missouri were working off a literal playbook of anti-abortion legislation passed around in sympathetic states. While there have always been fringe opinions, fear of alienating more moderate voters largely bound the movement to “strategic discipline,” Ziegler says. With an increasingly friendly Supreme Court, though, the true ambitions of abortion opponents are coming into view. Now, Ziegler says, there are “a lot of people within the anti-abortion movement saying, ‘Why do we need to play by the rules anymore? Let’s just put out whatever we want — the Supreme Court is going to let us do it.’”

Previously, abortion opponents have suggested that post-Roe, “red states can have conservative policies, blue states can have progressive policies, and everyone will just leave each other alone,” Ziegler says. But the reality will likely be far messier. If they want to fully ban abortion, legislators in conservative states will have to confront the fact that more permissive environments may exist right next door and across the country. They will have to grapple with the right to travel, to use the internet, to receive packages. It’s hard to see how policy-makers can close those loopholes without penalizing the patients directly.

Even in that context, the ectopic-pregnancy callout still looks like an overreach, and probably for that reason, Seitz has struggled to find support, even within his own party. But it could also be strategic. “I can very easily imagine Missouri legislators looking at this and being like, You know, this ectopic-pregnancy thing is kind of bad PR … but the rest of it sounds great. Let’s treat moving abortion pills in and out of Missouri as felony drug trafficking,” Ziegler says. Cutting out the bill’s most sensational line could help lawmakers position themselves as reasonable — at the same time as they start scheming up a framework that endangers and punishes patients.

Just a few years ago, wild legislative bids like these were more or less guaranteed to fail. These two still could. Either way, Missouri’s tactics signal a shitstorm ahead in which a lack of federal jurisdiction creates a complex web of conflict and broad questions of privacy. After all, Missouri isn’t the only state confronting the limits of its abortion laws. For now, Ziegler notes, it’s simply “ahead of the curve.”

Abortion Bans Will Only Get More Punitive From Here