We're already in a post-Roe v. Wade world
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On Wednesday, a new law came into effect in Texas barring abortions at six weeks and over. Six weeks is before many people know that they’re pregnant, and about 85% of abortions in Texas took place after this time before the law. The law also provides no exception for cases of rape or incest. So while this doesn’t exactly amount to banning abortion in Texas, it comes very close, especially given the way the law is written. The law allows any person in the country to bring a case against a Texas-based provider if they are suspected of providing an illegal abortion, opening clinics up to frivolous lawsuits which could bankrupt them. It’s a really big deal.
An equally big deal is the fact that the Supreme Court, now with its 6-3 conservative majority, didn’t act to stop the law from being enacted. Judicial precedent clearly establishes a constitutional right to an abortion and bans states from putting a “substantial obstacle” in the way of the abortion of a non-viable fetus. By refusing to step in to prevent this law from taking effect for even a day, the court is signaling that it no longer considers itself bound by that precedent. It seems to signal the arrival of a post-Roe world.
On its own, this doesn’t settle the issue of whether the court will ultimately ratify this situation under color of law. But it gives a strong hint. Although it hasn’t stopped the Texas law from going into effect, once it’s in operation it will be challenged and the Supreme Court will eventually have to rule on it. Another case, Dobbs v. Jackson Women’s Health Organization - challenging a Mississippi law which bans abortion after 15 weeks - is due to be heard in October. Other red states up and down the country have been busy crafting their own restrictions, hoping to have a pop at overturning either Roe or Planned Parenthood v. Casey, the other precedent-setting case which protects abortion rights.
All of this is terrifying, but it can often get in the way of understanding something else terrifying, which is that abortion rights have already been under steady assault for years, and that many Americans have effectively been living in a post-Roe world for some time. As with the Texas law, which was allowed to come into effect in the dead of night without a peep out of the nation’s highest court, the steady erosion of abortion rights has often been quiet and unassuming. Legal abortion in America won’t necessarily end with a banner headline in The New York Times saying “COURT OVERTURNS ROE”. It has already been happening much more insidiously.
Consider the following:
1) Six states have only one abortion provider left. Many states have enacted laws which make it so hard to operate an abortion clinic in their state that most of them have been forced to close, leaving six states - Missouri, Mississippi, Kentucky, North Dakota, South Dakota and West Virginia - with only one provider. Having only one clinic in the state places a huge burden on people seeking an abortion, who suffer longer journey and waiting times or are forced to cross state lines. In 2020, Missouri narrowly avoided becoming the first state in decades to have no abortion clinic after an order to close the last remaining one was overturned by a state commission.
2) Other state restrictions clearly place a “substantial obstacle” to access. Even with one clinic left, the various requirements someone has to meet to obtain an abortion in Missouri - including unnecessary invasive examinations - clearly constitute a “substantial obstacle” insofar as abortions have ground to a virtual halt there anyway. The situation in many other states is similar. Restrictions placed on clinics, doctors and patients reached a record level in 2021 as Republican state legislatures anticipated the could get away with more given the sharp rightward turn in the judiciary under Donald Trump.
3) During the pandemic, access collapsed. During the pandemic, many red states - ironically often the ones which resisted effective measures to stop the spread of Covid, such as masks - used the virus as a pretext to shut down abortion services. They classified abortion as an “elective” or “non-essential” surgical procedure, placing it in the same category as something like plastic surgery. Although these bans were later lifted, they showed how states could exploit crises to cut back access.
4) The battle over telehealth. As states have moved to restrict abortion access in recent years, a battle has been going on behind the scenes over access to abortion pills via telehealth. Although a large number of abortions in the U.S. are carried out via FDA-approved pills, federal regulations have required that pills like mifepristone be administered after an in-person visit to a doctor, which makes them of limited use in states where abortion is heavily restricted. In April, the FDA said that for the duration of the pandemic, they could be mailed after a Zoom consultation with a doctor. Even if that rule remains in place after the pandemic, it could be reversed by the next GOP administration, making federal access to abortion pills similar to the Mexico City policy or the Paris Climate Accords, which get abandoned or reinstated depending on which party is in power. And states could still ban the pills, forcing women to obtain and use them illegally.
One thing that is notable about all of this is that it has been unfolding in red states which are not home to major national media outlets, and I think that’s one reason that the fact a lot of people in these states already effectively live in a post-Roe world has not received greater attention. There’s a real need for solidarity and for the national left, which tends to have more of a coastal bias, to take this issue really seriously. Even if the court goes so far as to overturn Roe, Californians and New Yorkers are probably going to be okay - their state governments aren’t going to be banning abortion anytime soon. But this model of overturning constitutional rights needs challenging not just because it is in itself so wrong but also because it is a symbol of what GOP officials and a complicit judiciary might let happen in other areas of American life, too.