This week, Alabama’s governor signed legislation banning most abortions without exceptions for rape or incest, with sentences of up to 99 years in prison for abortion providers. It follows a measure that Georgia’s governor signed earlier this month effectively banning most abortions after six weeks of pregnancy and that is worded in a way that could lead to prosecutions of women who terminate their pregnancies after that point. Missouri’s legislature approved an eight-week abortion ban on Friday, also without exceptions for rape or incest. It contains a trigger that will ban abortion outright if Roe v. Wade falls. A Louisiana six-week abortion ban is likely to be next.
You can see, in the anti-abortion movement, a mood of triumphant anticipation. Decades of right-wing politics have all led up to this moment, when an anti-abortion majority on the Supreme Court could end women’s constitutional protection against being forced to carry a pregnancy and give birth against their will.
An end to Roe isn’t guaranteed — some court watchers expect Chief Justice John Roberts to allow it to be whittled away rather than overturned. But activists on both sides of the abortion divide agree that the precedent has never been more vulnerable.
Feminists sometimes say, of threats to legal abortion, “We won’t go back.” But 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.
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 the historian Leslie Reagan, 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.
The text of the Alabama law explicitly likens abortion to a crime against humanity. More “than 50 million babies have been aborted in the United States since the Roe decision in 1973, more than three times the number who were killed in German death camps, Chinese purges, Stalin’s gulags, Cambodian killing fields, and the Rwandan genocide combined,” it says. Surely this is a signal to prosecutors to treat it as an extraordinarily grave transgression.
At least the Alabama law exempts people having abortions from prosecution. But they are not spared by the Georgia law, which, as Mark Joseph Stern points out in Slate, has language that criminalizes self-induced abortion. Nor are women who abort exempt from punishment in the most recent version of Louisiana’s six-week abortion ban.
Republican politicians in other states are clearly interested in locking women up; last month, Texas legislators held a hearing on a bill that would allow women who have abortions to be charged with homicide and potentially subject to the death penalty. In a post-Roe future, the political fight, at least in red states, could shift from whether women can have abortions to whether they can be imprisoned for them.
None of this should whitewash the horrors and indignities that women in America endured before Roe. According to the Guttmacher Institute, there were almost 200 reported deaths from illegal abortion just in 1965, 17 percent of all deaths from pregnancy and childbirth that year. Each year thousands of women were hospitalized for botched abortions. And while women were rarely incarcerated for aborting, they were regularly threatened with prosecution to get them to testify against providers. America was a repressive place for women, without even the pretext of legal equality.
Still, a lesson of fundamentalist regimes worldwide is that when reactionaries try to enforce their ideas about gender traditionalism, they can be more tyrannical than real tradition ever was. Granting personhood to fetuses has already enabled some states to subject women to new types of social control; as ProPublica reported, in 2014 a woman was arrested under Alabama’s “chemical endangerment of a child” statute for taking half a Valium while she was pregnant. Those who might be ambivalent about abortion should realize that these strictures can apply to them as well.
As we watch Donald Trump remake this country in ways that once seemed unimaginable, it’s tempting to reach for historical analogies to grapple with what’s happening. It’s why, as people struggle to understand how his abuses of power might be constrained, there’s been renewed interest in Watergate. Yet, as in the comparison between Richard Nixon and Trump, the past can prove inadequate to understanding the depredations of the present. Rather than moving backward, we’re charting awful new frontiers.
Unlike many news organizations, INSIGHT NEWS is editorially independent, meaning our journalism is free from commercial bias and not influenced by billionaires, politicians or shareholders. No one influences our reporting of the facts. No one steers our opinion.
This is important as it enables us to give a voice to those less heard, challenge the powerful, and hold them accountable. It’s what makes us different than so many others in the media.
Especially at this time – when factual, honest reporting is crucial, your support is vital for the future of independent journalism.
To support independent journalism, please visit: