When he nominated far-right jurist Brett Kavanaugh to the Supreme Court, Donald Trump took another step toward keeping one of the more shameless promises he made as a candidate. He may not have built his wall or drained the proverbial swamp—in fact, DC is dirtier than ever. But it's starting to look like American women losing the constitutional right to terminate a pregnancy isn't a matter of if, but when. That's because once Congress confirms Kavanaugh—which it is all but certain to do—pro-life crusaders will have a court that is more hostile to Roe v. Wade than any that preceded it.
In case you need a refresher, the 1973 ruling decreed, among other things, that a woman's right to privacy under the 14th Amendment made any state law banning all abortions unconstitutional. If the decision were reversed, then states would again get to decide whether or not to allow women to terminate pregnancies in the abstract. And, depending on the scope of the ruling, some states might prohibit the procedure in every circumstance—even those involving rape or incest or to protect the life of the mother.
For obvious reasons, many millions of Americans are more than a little concerned about the prospect. One of them is Carol Sanger, a professor at Columbia University Law School and the author of About Abortion: Terminating Pregnancy in 21st Century America. We've spoken before, and as recently as last year, she told me SCOTUS would sooner back off its 2016 decision in Whole Woman's Health v. Hellerstedt—the ruling that clarified how states couldn't place an undue burden on women seeking abortions—than go after Roe. Since then, of course, Trump has confirmed a far-right justice who is widely believed to be hostile to Roe in Neil Gorsuch, and nominated another in Kavanaugh. These days, Washington Post columnists are calling a full-on reversal of Roe an inevitability.
But how does a Supreme Court case like Roe getting overturned play out in practice? And what would happen in the minutes, hours, months, and even years after a Supreme Court intern ran across the plaza to deliver such a decision to the masses? To find out, I caught up with Sanger and some other experts who helped me game out the legal, social, and economic repercussions.
Step 1: The search for the right case
In order for pro-life activists to reverse Roe, they need to ensure an abortion-related case is actually argued before the Supreme Court. There are two particularly plausible ways for that to happen, according to Sanger. One has to do with so-called "dismemberment" abortions—which are banned in Mississippi and West Virginia—the legality of which is now being disputed in South Dakota, Oklahoma, and Kansas. Meanwhile, a federal appeals court in Louisiana is currently deciding whether or not abortion doctors need to have admitting privileges at local hospitals. Although those in favor say keeping a woman taking an abortion pill under a doctor's watch is for her own good, those opposed say it would place an unnecessary and undue burden on people who want pregnancies terminated. (Making it difficult and expensive to obtain access to abortion under the guise of safety is a common pro-life tactic, though the Supreme Court ruled against a similar maneuver in the aforementioned 2016 case.)
If and when Kavanaugh is confirmed, he'll join Gorsuch, Clarence Thomas, and Samuel Alito as the fourth justice to believe the Constitution remains a set of fixed rules for America that cannot be re-interpreted despite the world being a rather different place in 2018 than it was in 1787. Meanwhile, "activist judges," as conservatives like to call anyone who isn't a strict originalist, believe (or at least aren't repulsed by the idea that) the Constitution is a living-and-breathing document; the Court includes four such jurists in Elena Kagan, Stephen Breyer, Sonia Sotomayor, and Ruth Bader Ginsburg. Finally, there's Chief Justice John Roberts—undoubtedly a very conservative judge who ultimately represents a bit of a wildcard. On paper, he's a practicing Catholic whose wife was previously involved in a pro-life feminist group, has been touted by conservatives as Originalist, was in the minority on Whole Women's Health, and even signed a 1990 brief arguing that Roe was wrong.
But according to Sanger, the fate of abortion all comes down to where Roberts falls down on the hallowed principle of stare decisis, or the idea that precedents shouldn't be overruled unless there's an extremely good reason. One relevant precedent came from the 1992 case Planned Parenthood v. Casey, in which SCOTUS said it wouldn't be fair to overturn Roe, in part because an "entire generation" of women had come to rely on the idea of abortion being legal and had subsequently planned lives and careers around that fact.
"[Roberts] has some concern about if his court is gonna be the one that overturns Roe," Sanger told me. "He could well say that while he might not have approved of Roe in the first place, in the 40 years since the decision was made, we've now had two generations of people who have grown up thinking that abortion is legal in America. And we'd really be pulling out the rug from under people if we flipped on that now."
Step 2: Police close clinics, and abortion becomes a crime in at least four states
But if Roe is overturned, it will be up to each individual state to decide if they want to allow abortion, and when. There are nine states that have constitutional protections on the books right now meant to protect a woman's right to choose in at least some cases, but there are also nine that never repealed their abortion bans after the Supreme Court rendered them obsolete. Others are in a kind of middle-ground, and still more have already actively anticipated the day there might be another landmark abortion case.
"Some of the states have said, 'We want to be absolutely ready for a Roe reversal case, and we don't want to have to wait for the legislature,'" Sanger told me. "And, surprise, surprise, the really nasty states have put laws into effect saying that the second Roe is reversed, a criminal statute springs into effect."
These so-called trigger laws exist in Louisiana, Mississippi, and North and South Dakota. That means any clinic there would be shut down, one way or another, and fast. Elizabeth Nash, senior state issues manager at the Guttmacher Institute, told me how it would play out in each: For instance, the law in Louisiana says that the state will ban abortion if Roe is reversed in such a way as to allow states to ban abortion or if the US Constitution is amended to allow states to ban abortion. Things are much more straightforward in the other three. Mississippi will ban abortion (except when the woman's life is at risk, or she was impregnated during a rape) ten days after the state attorney general certifies that Roe was overturned, while North Dakota would ban abortion (with exceptions for the mother's life, as well as rape and incest cases) as soon as a state legislative council approved a recommendation from the state attorney general that the abortion ban was considered constitutional. Meanwhile, South Dakota would criminalize abortion (except for cases in which the mother's life was at risk) the second states were allowed to do so.
"Both Mississippi and North Dakota have a step that requires some kind of government process to happen," Nash told me. "The thing is, that given the current political environment in both states, I don’t think these certification steps will take very long."
Still, it's not all that likely that people in the middle of undergoing a procedure when the decision came down would be yanked out of the clinic's office. One somewhat more plausible scenario to consider came in Tennessee, which implemented a mandatory waiting period for abortions in 2015—clinicians did have a brief window (about a month and a half) to adjust to the grim new reality.
Regardless, clinics in anti-abortion states would shutter one way or another, and in a country where the Supreme Court had just equated abortion with murder, everyone from local legislators to governors and mayors to cops to angry hordes of pro-life activists might feel emboldened.
"Technically, if they didn't close, the police would come and close them down," Sanger told me. "And I suspect some will actually not close in order to have that confrontation. If I was running a clinic, I'd say, 'Come and close my doors, and let's record this.'"
Step 3: Other states scramble to figure out what to do
States have different rules for when their legislatures might go into special sessions to put rules in place outside of regular schedules. In 15 of them, such a session can only be called by a governor, according to the National Conference of State Legislatures. But a court decision is often specified as one of the reasons where it would be appropriate to call people in after-hours, which means that some states would very likely go into special session right after Roe was overturned.
"I think you'll see whole swaths of the country where abortion becomes illegal at least temporarily and women will have to travel across multiple states to get one," said Gretchen Ely, social work professor at the University of Buffalo and an expert on abortion access.
However, support for Roe is at an all-time high, with about 71 percent of people opposing its reversal in the abstract, according to one recent poll. While abortion remains a hot-button topic that propels a lot of single-issue voters, the average non-evangelical Christian Republican living in Virginia might behave differently in the ballot box than they do on Facebook. If many such people were at odds with lawmakers, we could see the electoral map start to look very different, pretty quickly.
That might make it difficult for women to keep up with what's legal where, but it would also potentially lead to some changes that progressives might like. "You would have a lot more interest in new and fresh candidates at the state legislative level," Ely said. "We could see after the midterms some state level [legislatures] flip, even in places we don't expect. And you will see a lot of involvement when people start showing up to facilities and getting turned away for services that they need."
She compared what might happen in a red state's local or statewide election after the reversal of Roe to the Alabama contest in which it took the Republican candidate Roy Moore being accused of child molestation for a Democrat to win the race.
"It's unfortunate that Roe might have to get overturned to kind of galvanize this momentum, but the climate would be ripe for resistance," Ely said.
Step 4: Women leave the workforce, people have less sex, and crime goes up
Caitlin Knowles Myers, an economist at Middlebury College who studies the effects of reproductive policy, noted that many people in her field predict abortion would be ultimately be legal in 20 states if Roe were overturned. That leaves 30 where access would be significantly, if not completely, cut off.
In the longer term, various academic studies over the years have suggested, the rate of sexually transmitted diseases like syphilis and gonorrhea could drop by as much as 26 percent, because the perceived (and actual) cost of abortion would increase, and people might be less likely to engage in risky sexual behavior. On the other hand, tens of thousands of people would exist who might not have otherwise. Overall effects on population would likely remain relatively small, because many women would just travel to states like New York for healthcare. But if trends in the decades after Roe were any indication, the nation's crime rate would probably go up.
Myers, who researches the social and economic effects of reproductive health policies, said liberalized access to abortion in the 70s reduced the fraction of women who gave birth before 19 by a third. But that doesn't mean it's reasonable to expect that, if that right were taken away, the reduction would be perfectly reversed. We might see more young mothers and shotgun weddings—especially among poor women and women of color unable to access the procedure elsewhere. But a whole lot has changed in the past four decades, including social mores, contraceptive and abortion technologies, and state policy environments. That said, Myers noted, it's important to keep in mind that three quarters of women seeking abortions are poor or near-poor, and even modest increases in the amount of travel it takes to get an abortion would be cost prohibitive to them.
Meanwhile, many relatively affluent women would continue to find a way to access abortion—probably thanks in part to the rise of some shady industries.
For instance, before Roe, when abortion under most circumstances was only legal in four states, there were chartered trips that would take pregnant women from Detroit to Western New York. The flight, procedure, and a meal were all included in the $400 price tag. Although many more states would likely have some sort of legal abortion upon the reversal of Roe than in the 1970s—and the science and medicine have come a long way since then—it's possible states like New York and California could become hubs for what can only be described as abortion tourism.
"That could happen," Myers said. "It did happen."
Ely, at the University of Buffalo, agreed that so-called entrepreneurs would be able to take advantage of an overturned Roe. She noted that before that decision, but when abortion was already legal in New York, the state had to set up hotlines to take calls from people traveling there. "They'd be taking in women from Pennsylvania, which is an iffy state on the border," she told me. "Plus people who are coming from places where they can get a cheaper flight to New York than to other places where abortion might remain legal. It will be overwhelming to New York, especially if they don't have enough time to prepare."
With abortion clinics in liberal states clogged, another black market that could pop up after Roe would deal in abortion pills. Typically, people who want to miscarry take two drugs—Mifepristone, which causes contractions, and Misoprostol, which induces labor. The latter is also available over the counter in Mexico. "It's not as effective as two-drug combo, but it's pretty effective," Myers said. "The question is to what extent is the government would crack down on this, and what are you getting. That's always the concern with black-market drugs."
The internet was not around in 1973, and the relative cost of airfare is certainly lower than it was pre- Roe. That said, it's not as if you could look to those days as a fully reliable predictor of what would happen if abortion were no longer a right in America. If facilities in New York got clogged and online drug suppliers overwhelmed, the cost of abortion would be likely to increase. Given that upwards of 40 percent of Americans don't have $400 in savings to cover for an emergency, that would put the cost of the procedure out of reach of a lot of people.
Really, the only thing that could be reliably predicted after the reversal of Roe is chaos.
"It's unprecedented for a Western nation to regress in that manner," Ely told me. "A lot of it is going would have to play out minute by minute, hour by hour."
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