Molly Jong-FastThu, October 7, 2021, 2:09 PM·5 min read
Earlier this week, the Supreme Court started its blockbuster session. It’s the first full session involving all three of Donald J. Trump’s new conservative justices. You’ll remember that Trump promised to overturn Roe, telling the American public during a October 2016 debate, “And that’ll happen automatically, in my opinion, because I am putting pro-life justices on the court. I will say this: It will go back to the states, and the states will then make a determination.”
So, in some odd way, Trump predicted what this post-Roe America will look like: His anti-choice justices likely will give the states free rein with highly restrictive laws. (It’s important when writing about this new Trumpy Supreme Court to note the irony of a thrice-married adulterer making abortion illegal.) According to many Supreme Court watchers, this is the most conservative Supreme Court since the 1930s.
On December 1, the Supreme Court will hear Dobbs v. Jackson Women’s Health Organization, a case that will look at the constitutionality of a Mississippi law banning abortions after 15 weeks, well before viability. (Roe established the right to an abortion prior to viability; a fetus is generally not considered viable outside of the womb until after 24 weeks of gestation.) It’s likely that they will either overturn Roe completely or gut the statute so much that it’s essentially overturned. Look no further than their refusal to block the blatantly unconstitutional Texas bill banning abortions after six weeks—allowing the law to go into effect until last night, when a federal district-court judge in Austin, Robert L. Pitman, paused Texas’s draconian abortion ban. (As he pointed out: “From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their own lives in ways that are protected by the Constitution.”)
If the Supreme Court dismantles Roe, it sets us up for a larger question: What will a post-Roe America look like? “Many people, especially Texans, are already living life in a post-Roe America,” says president and CEO of Planned Parenthood Affiliates of California Jodi Hicks. “What’s potentially even more frightening is the thought of more states following Texas.” Hicks is making the point that if the Supreme Court overturns Roe, it’s very likely that the surrounding states of Oklahoma, Louisiana, and Arkansas will follow Texas’s lead, just as Florida is already threatening to do and likely will. If you are a pregnant woman in Houston who wants an abortion, you will likely have to miss multiple days of work and drive 12 and a half hours to New Mexico.
A post-Roe America will likely result in red states criminalizing abortion (perhaps with bounties the way Texas did) and blue states allowing abortion to continue. Women in blue states won’t have trouble getting abortions, but women in red states will have to travel hundreds of miles. And what happens in purple states is anybody’s guess. Think about Virginia, which is staring down a pretty tight governor’s race. What if Trump acolyte Glenn Youngkin wins? Will abortion no longer be legal in Virginia? That’s a real possibility. Could we face a scenario where abortion is legal in the District of Columbia but not a state that borders it?
“Our country without Roe v. Wade would be catastrophic,” says Rep. Silvia Garcia. “It will throw 50 years of progress for women’s freedom to choose over their bodies out of the window and set back women’s ability to thrive in a society that is only becoming more competitive.” What is more, she notes, “women’s lives would be more at risk. We could see the rise of back-alley abortions, self-induced abortions, and [processes] that lead to health complications and, in some cases, death.”
In a bizarre way, this new landscape could accelerate expanded access to medical abortions. Right now, the FDA is reviewing the safety data on medication abortion care, which has been subjected to lots of state and federal restrictions. “We have over 20 years of research pointing to the safety and effectiveness of medication abortion care,” says Kristen Moore, the director of the EMAA Project, an organization working to expand access to medication abortions, a noninvasive option for many women up to 10 weeks into pregnancy. “While the FDA has lifted some restrictions on medication abortion care during the pandemic, more is needed to ensure access for people who are disproportionately harmed by restrictions, including people of color, those working to make ends meet, and people who live in rural areas.”
But what about the teenage girl who doesn’t discover she’s pregnant until after the first trimester or the woman who discovers her 13-week-old fetus has some fatal disease and decides that she cannot bear to carry and deliver a baby who will immediately die. What do these women do in a post-Roe America?
We know that outlawing abortions doesn’t stop abortions, it just stops safe abortions. A week ago, Congresswoman Barbara Lee testified in Congress about going to Mexico to get a “back-alley” abortion. Lee told the group: “In the 1960s, unsafe septic abortions were the primary killer—primary killer—of African American women.” We don’t know exactly what a post-Roe America will look like, but we do know one thing: We do not want to go back to that time.