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The Post-Roe world will be worse than the pre-Roe status quo ante


Great piece by Dahlia Lithwick about how the state of reproductive rights after Roe is overruled next June will be soon worse than it was in 1972:

There has been a tendency, in the week since it became clear the U.S. Supreme Court will likely either uphold Mississippi’s unconstitutional 15-week abortion ban or overturn Roe v. Wade outright, to suggest that when this happens, America will return to the days “pre-Roe.” That is intended to mean, one assumes, that we will go back to a patchwork of laws in the various states, and see the grim return of women attempting to terminate their own pregnancies with sometimes lethal results as well as the backroom illegal abortions that were the norm before Roe became law. But it is not quite accurate to say this would be a simple return to life pre-Roe: If the boldest voices in the pro-life movement have their way, America would not so much be reverting to its pre-Roe past but slipping sideways into something that could be—believe it or not—much worse.

Michelle Goldberg made this point two years ago in the New York Times, after Alabama, Georgia, and Missouri passed a raft of (at the time) unthinkably punitive abortion bans immediately after Brett Kavanaugh was seated at the Supreme Court. As she wrote at the time, “it’s important to understand that we’re not necessarily facing a return to the past. The new wave of anti-abortion laws suggests that a post-Roe America won’t look like the country did before 1973, when the court case was decided. It will probably be worse.”

Anyone listening carefully to the newly ascendant views of abortion opponents can hear it—the talk of legal “fetal personhood” and of punishing mothers who endanger an embryo takes us into a new, uncharted, and theological realm that is quite different even from the status quo before Roe. Sure, we now hear opponents of abortion offering up a lot of platitudes about the need for better social safety nets (as though such things haven’t been desperately necessary for decades). But a better social safety net to help unwilling mothers carry, birth, and then parent unwanted children is not in fact where we are headed.


In other words, this doesn’t necessarily end at “returning abortion to the states.” Talking to the New Yorker’s Isaac Chotiner this week, Marjorie Dannenfelser, president of the Susan B. Anthony List, talked about plans for a nationwide 15-week abortion ban in the years to come. Religious groups that oppose abortion now speak openly of a project set forth by scholars such as John Finnis, a professor emeritus at the University of Notre Dame, who argued in the Catholic journal First Things that legislators who wrote the 14th Amendment viewed unborn children as persons, such that unborn children would receive the full guarantees of equal protection and due process of the law under the 14th Amendment. Finnis and Robert George also filed an amicus brief at the Supreme Court in Dobbs v. Jackson Women’s Health Organization,urging the court to make all abortion illegal. As Garrett Epps pointed out this fall, in their brief they urged that the “prohibition” of abortion is “constitutionally obligatory because unborn children are persons within the original public meaning of the Fourteenth Amendment’s Due Process and Equal Protection Clauses.” Yes, they are contending that the notion that any fertilized egg is a full human person, is within “the original public meaning” of the 14th Amendment. The push for such protections, while still dismissed as somewhat fringe-y, can be seen in Justice Clarence Thomas’ enthusiasm for the equal rights of the unborn, and that includes, by necessity, punishment for women who endanger their pregnancies.

Abortion bans that were draconian on paper generally stayed on the books by being rarely directly enforced, and it was almost impossible to get a jury to convict a doctor for performing an abortion that didn’t result in serious injury to a patient. I’m not romanticizing this era — the mix of grey and black market abortions left a lot of women without access to safe abortions — but after Roe there will be much more appetite in Republican states to use direct state coercion to crack down on abortion. And the fact that many swing states no longer offer democratic elections for the state legislature will make things even worse.

As will, of course, the increasingly skewed national legislature. “Overruling Roe will send the issue back to the states” is a line that will still get a lot of traction from the media, but it’s just not true. Blue states aren’t safe at all, and the question isn’t whether the next Republican trifecta will pass a national abortion ban but how draconian it will be.

But remember when MARK UTERUS said that electing Cory Gardner could lead to the end of reproductive freedom in America hahahahahaha what a dunce those nice moderate Republicans whose sons play lacrosse against ours could never do such a thing.

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