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We Kill the Flame

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Michelle Goldberg observes that with respect to the coming disembowelment of Roe v. Wade in many states things won’t be as bad as the pre-Roe status quo ante. They’ll be worse:

True, in a post-Roe America, some women would be able to get abortion-inducing medications that weren’t available the last time abortion was criminalized. (Misoprostol, which is also used to treat ulcers, can be ordered online.) But today’s legal context has been transformed by decades of anti-abortion activism equating abortion with murder, as well as by mass incarceration.

While doctors were prosecuted for abortions before Roe, patients rarely were. Today, in states that have legislated fetal personhood, women are already arrested on suspicion of harming or endangering their fetuses, including by using drugs, attempting suicide or, in a case in Utah, delaying a cesarean section. There’s no reason to believe that, in states where abortion is considered homicide, prosecutors will be less punitive when investigating it.

Further, the abortion bans in the new wave are harsher than most of those that existed before Roe. At that time, most states prohibited abortion in most circumstances, but according to historian Leslie Reagan, the author of the book “When Abortion Was a Crime,” there was little legal conception of fetal personhood.

It was generally up to doctors, Reagan told me, to determine what constituted a “medically justifiable” exemption to abortion bans. “The legal loophole provided a space in which doctors and women could negotiate and allowed physicians to perform abortions in the privacy of their own offices or homes,” she wrote in her book.

By contrast, the new laws seek to curtail medical discretion. Under the Alabama measure, doctors can perform abortions only when a woman is facing death or “serious risk of substantial physical impairment of a major bodily function.” Otherwise, abortion is a class A felony, and Reagan said the potential 99-year prison sentence it carries is far longer than any punishment a doctor could have faced in pre-Roe America.

“Exactly how bad” is the only open question.

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