life after roe

Overturning Roe Is Just the Beginning

Law enforcement stationed outside the Supreme Court Photo: Jacquelyn Martin/AP

The Supreme Court has done its worst, overruling Roe v. Wade and engineering a health-care crisis guaranteed to affect patients across the nation. Authoring the majority opinion in Dobbs v. Jackson Women’s Health Organization — the country’s new landmark abortion decision, upholding a Mississippi law based on medical fallacies — Justice Samuel Alito wrote that “Roe was egregiously wrong from the start.” That ruling, issued in 1973, barred states from outlawing abortion before fetal viability, around 24 weeks, as well as when risks to a patient’s life or health arose further into pregnancy. Conservative lawmakers have worked to chip away at Roe’s terms for decades, culminating in Friday’s decision.

The Guttmacher Institute expects that the procedure will now become explicitly or effectively illegal throughout more than half of the U.S. Within hours of the Court’s announcement, Alabama, Arkansas, Kentucky, Louisiana, Missouri, Oklahoma, South Dakota, Texas, and Utah were enforcing bans on abortion in nearly every case. Other states with trigger laws on the books are expected to follow suit in short order. People’s mental and physical health will suffer, even in those areas where abortion remains legal, as these states narrow access to abortion. Medical professionals forecast a few clear and forbidding outcomes: Climbing infant and maternal mortality rates (already dramatically higher in the U.S. than among its comparably wealthy peers). Cyclical poverty, likely entrenched along racial lines. As serious as those probabilities are, they still constitute just one piece of the puzzle.

As President Joe Biden noted Friday in his comments on Dobbs, the ruling marks the “realization of an extreme ideology” as sanctioned by the country’s highest court. Though his pleas that the public resolve this issue at the ballot box felt feeble — how can we count on even purportedly “pro-choice” lawmakers to solve this, when they repeatedly fail to do so? — he was correct in his assessment that the decision’s implications reach far beyond abortion. “The Court has done what it has never done before: expressly take away a constitutional right,” he said, calling the conservatives’ opinion “wrong and extreme and out of touch with the majority of Americans” who continually indicate that they support Roe and want to see it maintained.

In Dobbs, Alito and his conservative colleagues have demonstrated once again how thoroughly a minority can override the majority’s will, exploiting democratic systems to enforce its faith as law. As the Republican Party’s center moves further and further toward its fringe, it’s worth considering the other items on its agenda. For abortion and for health care generally, the decision promises to be devastating, but do not expect for a second that the GOP will stop here.

Mike Pence is pushing for a national abortion ban.

Shortly after the opinion dropped, the former vice-president — an anti-abortion zealot obsessed with seeing Roe “consigned to the ash heap of history,” as he phrases it — cheered the ruling and asked for more. “It is incumbent on all who cherish the sanctity of life to resolve that we will take the defense of the unborn and the support for women in crisis pregnancy centers to every state in America,” he said to Breitbart, per the Washington Post. “Having been given this second chance for Life, we must not rest and must not relent until the sanctity of life is restored to the center of American law in every state in the land.” By which he means: ban abortion at a federal level.

Maybe that seems like a stretch, but then the GOP’s center has shifted dramatically to the right. Pence is rumored to be positioning himself as his party’s more reasonable answer to the specter of Trump 2024. And on abortion, lawmakers polarize neatly down party lines; indeed, as the Washington Post notes, the only federal legislators to cross the aisle on recent efforts to codify abortion were Democrats voting “no.” It has not mattered to politicians like Mitch McConnell that most of the country favors abortion rights, nor does it seem to matter to alleged moderates like Susan Collins.

Justice Clarence Thomas is thinking about the other privacy-based rights he might now overturn.

In a solo concurring opinion, Justice Clarence Thomas argued that the majority’s ruling on Dobbs paved the way, or should pave the way, for the Court to “reconsider” certain other rulings. Roe rested in large part on the idea of an implicit right to privacy — that it protected a woman’s right to decide whether or not to stay pregnant — conferred in part by the 14th Amendment’s due-process clause. Thomas suggested three specific cases, built on that same legal premise, that he believes the Court should now revise: Griswold v. Connecticut, which found a statute criminalizing the use of contraceptives by married couples to be unconstitutional; Lawrence v. Texas, which held that a Texas law criminalizing consensual same-sex intercourse was unconstitutional; and Obergefell v. Hodges, which extended the right to marry to same-sex couples. If Thomas has his way, contraception, gay marriage, and LGBTQ relationships could soon be on the chopping block.

Alito wrote in his majority opinion that “our decision concerns the constitutional right to abortion and no other right,” though his assurances didn’t convince his dissenting colleagues. “No one should be confident that this majority is done with its work,” Justices Sonia Sotomayor, Elena Kagan, and Stephen Breyer wrote in their response. “For decades,” they continued, “the Court has linked” abortion “to other settled freedoms involving bodily integrity, familial relationships, and procreation.” There is no reason to believe that those supposedly settled matters will stay that way. Christian conservatives view non-procreative sex, the ability to prevent pregnancy, and homosexual partnerships as challenges to the patriarchal family unit they want to enshrine as the law of the land — just like they do abortion.

National Right to Life is working on legislation to dramatically expand criminalization of abortion.

The National Right to Life Committee is already pushing model legislation that would prohibit abortion in every circumstance except “to prevent the death of the pregnant woman.” In jarringly regressive terms, it outlined what the NRLC believes will be “an effective enforcement regime”: One component would enable a fetus’s “family members” to sue over an abortion, and for its “father” or an underage patient’s parents to file wrongful death lawsuits. The legislation would also rely on the threat of bringing felony charges against providers, but also against anyone who offers information about obtaining abortion over the phone, online, or across “any other medium”; against “abortion doulas”; against anyone manufacturing and distributing (“trafficking,” in the legislation’s terms) abortifacients; and against anyone who helps a minor terminate an unwanted pregnancy. It empowers attorneys general, rather than district attorneys, to charge supposed offenders and medical licensing boards to revoke physicians’ certification where applicable.

While the model legislation’s language specifically shields the patient from criminal charges or civil action, there’s no reason to believe that will hold forever. Anticipating Roe’s downfall, conservative states began proposing legislation in recent months that moved away from the anti-choice movement’s woman-as-victim narrative. The Missouri legislature, for example, weighed a bill in March that sought to reclass FDA-approved abortion medication as traffickable narcotics, which essentially would have criminalized treatment of ectopic pregnancies. In May, Louisiana’s House Committee on the Administration of Criminal Justice passed a bill that cast abortion as homicide, potentially placing a life sentence on patients. Lawmakers had to lose that language in order for the bill to pass because the notion of involuntarily pregnant person as murderer remains alienating to most people.

Red states want to expand their jurisdiction beyond their borders — and that means surveillance.

The anti-abortion movement can only achieve its ultimate goal if abortion becomes illegal everywhere. As long as a patient in a red state can travel elsewhere to terminate a pregnancy, or order the medication to do so online, conservatives can’t fully enforce their laws — which is why some have been exploring ways to expand their jurisdiction. Missouri legislators have considered a bill that would use a Texas-style vigilante enforcement mechanism to block residents from crossing state lines to end their pregnancies. The Supreme Court has repeatedly declined to weigh in on the constitutionality of this style of civilian policing, so the measure’s legal viability remains unclear. What is clear is that legislation like this, and bills that seek to prohibit or limit mail-order abortion pill services, would require a high level of state surveillance if they’re going to work. If the provision of abortion becomes a crime, then digital data — internet searches, location information, visits to certain websites, records entered into period-tracking apps — becomes potential evidence. That shift should worry everyone, both because of the possibility that legislators may drop the act and target abortion patients directly or because of the broad implications for personal privacy. As the Dobbs opinion makes abundantly clear, your right to privacy is no longer the Court’s concern.

Overturning Roe Is Just the Beginning