Who will be criminalised in the post-Roe USA?

A picture of a blue van with its rear covered by large pictures of babies and foetuses with the slogans "Choose life not death", "Let me live", "Abortion shame", "Abortion causes breast cancer" and "Hitler's Holocaust" printed on them. There is an American flag transfer on the left side of the van.
An anti-abortion protester’s van in Birmingham, Alabama

Last week a draft of a ruling by the conservative majority on the US Supreme Court was leaked to the American news site Politico (PDF of the document itself here) which indicated that the court will overturn the 1973 Roe v Wade ruling which prohibited the states of the US from entirely banning early abortion. The opinion, written by Samuel Alito (appointed by GW Bush) and apparently favoured by four other conservative judges, claims that the earlier ruling was “egregiously wrong”, that “its reasoning was exceptionally weak”, and that it constituted an “abuse of judicial authority” which invented a right which had no constitutional basis nor any precedent in US history. This will be the culmination of a long war of attrition by the American religious Right; under Bush junior and Trump, a series of ‘conservative’ judges have been appointed to the Supreme Court in the expectation that Roe will be overturned once they achieved a majority. In recent years a number of states have introduced laws which are directly aimed at provoking a challenge to Roe, while others have introduced “trigger laws” that would outlaw abortion as soon as Roe was struck down. Some states also have laws from before Roe on the statute book which some prosecutors have made it clear will be reactivated if Roe is overruled, with one Republican county prosecutor in Michigan saying would be prosecuted without exemptions, including situations where the mother’s life is in danger; in at least one state, legislators intend to outlaw the use of hormonal and emergency contraceptives and IUDs on the grounds that they are in fact abortifacients.

Abortion is one issue where a lot of people inclined towards conservative views have taken the other side because of the sheer extremism and irrationality of those they might have stood with. In many countries, any debate about abortion founders on the possibility that it may lead to the situation in the US where anti-abortionists have killed doctors as well as harassing women and bombing and burning the clinics; the irony of all the talk of saving babies is that their behaviour may have made abortion easier everywhere but in the US. People are very much aware of the hypocrisy of “pro-life” campaigners who resist the expansion of public healthcare, or gun control, or who support the death penalty despite evidence of racism in the police and justice systems and their carelessness about the conviction of innocents. In recent years, a number of countries in Latin America have passed laws outlawing abortion with no exceptions, including to save the life of the mother, similar to the constitutional amendment passed in Ireland in the 1980s and only recently repealed after it became obvious that women were dying, sometimes for the sake of foetuses that could never have been saved. Both in those countries and in reactionary states of the US, women have been sentenced to long prison terms after suffering miscarriages which it was deemed that they had contributed to by using drugs or alcohol during pregnancy, or it was wrongly supposed that they had induced their miscarriages. It does not always appear necessary to prove a causal link between the woman’s alleged behaviour and the miscarriage (perhaps this will help the woman appeal, though she will by then have spent several years in prison). These women were often poor or from Black or Latino background, and it was the prejudices of the doctors (that “these people” are drunks or drug addicts and can’t be trusted to look after their children) that led to the police becoming involved in the first place.

Miscarriage is extremely common; one in eight known pregnancies end in miscarriage (many more miscarriages happen to women who do not know they are pregnant) and ‘only’ 1% are affected by three or more miscarriages in a row. I used to know a family where the mother had seven miscarriages in between the births of her second and third son. Infanticide is a crime, which is as it should be, but in the UK in the late 90s and early 2000s, a series of women were jailed for murder because they experienced multiple cot deaths which a then influential paediatrician claimed did not happen; two cot deaths was ‘suspicious’ and three, unless proven otherwise, was murder. This ‘science’ has since been debunked, but it left grieving mothers in prison for several years, children without their mother and marriages destroyed; one of the mothers died only a few years after she was released. A total ban on abortion will result in mothers being investigated for illegal abortion when they are grieving the loss of wanted babies; anything she had done which has ever been linked to increased risk of miscarriage will be used against her, especially (but not only) if she is poor or not white, because these irrational, predatory politicians and prosecutors will be looking for opportunities to get convictions. Following the scent of blood, in essence.

I’m not wholly pro-choice; I support tightening up rules such as the exemption to time limits for a disabled foetus (and ‘disabled’ or rather ‘handicapped’ could mean something as trivial as a cleft palate, a condition correctible by surgery, as it is undefined; the example of a cleft palate is a real one). We need to understand why there are time limits for abortion: because it is morally unacceptable to end the life of the foetus because of a liveable impairment at a stage when when it is definitely a baby and could survive premature birth (especially in the context of modern healthcare). I have come across feminists, in particular, who use the most extraordinary euphemisms and circumlocutions to elide the fact that a foetus in late gestation is a human being, even if not a legal person (and ‘person’ as a legal term means something different from the word in everyday language, which simply means a human being), while some simply flatly deny it. This sort of extremism could have much the same effect as that of the “pro-life” side, and drive people onto the other side who were sympathetic to the idea that early abortion should be available for women who are desperate.

I haven’t read the entire opinion, which is 98 pages long including footnotes. I am no expert on American constitutional law but the fourteenth amendment (which Roe largely relies on) is not the only one that might be involved; where contraception is prohibited, where fantasies hold sway such as it being possible to re-implant an ectopic pregnancy in the womb (it is not, and a ruptured ectopic pregnancy will kill very quickly) and where little consideration is made for where a woman’s life is at risk, a case could be made that either or both of the first and fifth amendments (establishment of religion and right to life) are being violated: women will be expected to lay down their lives to suit a belief (that life begins at conception) favoured by some religions but not agreed with by everyone. The Alito opinion does not discuss these possibilities, so this could be a matter for future litigation, the result of which is not a foregone conclusion as judges with a conservative approach to the constitution do not always rule in favour of socially conservative opinions and right-wing demands. Americans have always looked to the federal government and the constitution to protect them from the caprices and prejudices of local politicians and however tendentious the reasoning in Roe may have been, without it some of the most bigoted politicians and officials in the US will have a free hand to persecute women who are in desperate situations, are grieving, or both. They simply cannot be trusted with this power.

Image source: Dave Walker (original image). Licensed under the Creative Commons Attribution-ShareAlike (BY-SA) 2.0 licence.

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