The Overturn of Abortion Rights Cannot Be Minimized

We should mourn the loss of the right to an abortion—and see with clear eyes what its destruction means.

Abortion rights supporter Lilly, who declined to provide a last name, watches the sunset near The Supreme Court on June 28, 2022 in Washington, D.C. The Supreme Court’s decision in Dobbs v Jackson Women’s Health overturned the landmark 50-year-old Roe v Wade case and erased a federal right to an abortion. (Nathan Howard / Getty Images)

In the days since the Supreme Court released its opinion in Dobbs v. Jackson Women’s Health Organization, there has been intense debate about whether this is the last right that will be eliminated by the Supreme Court’s conservative supermajority. Many have predicted that the Court’s new approach to recognizing constitutional rights—one that looks only to the things protected by the white men in elected office in the 19th century—would lead the Court to dismantle protections for birth control, sexual intimacy, and same-sex marriage. In his concurring opinion in Dobbs, Clarence Thomas reinforced these concerns. Thomas called on the Court to undo every precedent recognizing an unenumerated right.

Others, like Yale professor Akhil Amar, have called these concerns overblown and even hysterical. They point out that no one joined Thomas in his concurrence, and that abortion is different from other rights in any case.

I have written before that we have every reason to worry about other rights. But set that aside for that moment. But why has everyone worried so much about other rights and so little about this one? Why can’t we talk more about the loss of this right? Even if this is the end—and it is not—we should dwell on what it means. We should mourn this right—and see with clear eyes what its destruction means.

We should be clear about how little states banning abortion will do for people who carry pregnancies to term. The anti-abortion movement of the 1960s and ’70s was strongest in Northeast and Midwest, places that were politically competitive, with relatively strong safety nets. Criminal abortion laws still wreaked havoc. But the people enforcing them, and the people on juries, were divided on the issue. State lawmakers did not have incentives to deal out the harshest imaginable punishments.

Now, the anti-abortion movement has the most power in Southern states—those with the most people in prison, the greatest racial disparities in prison populations, and the most carceral policies. In 2022, these are among the states with the least political competition. These are also places with terrible outcomes for children’s health and wellbeing and devastating rates of maternal mortality, especially for people of color.

All of this means that we are living through the destruction of a right for pregnant people who are being offered nothing in return. We should not move so quickly past the damage done to pregnant people, especially in places where they face the most obvious discriminations. It matters, and we should say so.

And minimizing the loss of this right signals indifference to new costs borne by pregnant people—or even those who can get pregnant—in a world where abortion is a crime. Even when the Supreme Court recognized a right to choose, pregnant people were prosecuted for feticide and child abuse for conduct during pregnancy. Perhaps unsurprisingly, most of those prosecuted were people of color.

Now, we know that people seeking treatment for ectopic pregnancy or miscarriage or other conditions will struggle to find care—and even more than would have been the case before 1973. Trigger laws and zombie laws often carry much harsher penalties than did the criminal laws of the 19th century—often between 10 years and life in prison. That means that doctors face pressure unlike anything we’ve seen to deny any kind of care that could be interpreted as abortion.

And with reams of digital data at their disposal, law enforcement officers now have vastly greater surveillance powers than they did when abortion was last a crime. That means that anyone who can get pregnant will have to think twice before googling the word “abortion,” sending an unencrypted text about pregnancy, or even ordering a Lyft to Planned Parenthood.

The pressure to directly punish pregnant people will be unprecedented too. Historically, states claimed not to punish people for having abortions. Things, of course, were never that simple. States surveilled pregnant people, arrested and released them, and coerced them into testifying against their doctors and partners. But before, prosecutors often told stories about naïve women seduced by cads and exploited by abortion doctors—and primarily targeted lovers and providers.  

Now, most people having abortions rely on two pills, misoprostol and mifepristone, to terminate their pregnancies. Telehealth procedures are safe. Pills can be mailed from blue states, or even from abroad. Anti-abortion groups say they do not want to punish pregnant people—they are looking for ways to extradite doctors from blue states, define an extraordinarily broad group of people as potential accomplices, all while promising that pregnant people won’t be touched. But it will not be easy to target providers in progressive states, much less other countries. Prosecuting pregnant people will not raise the same constitutional questions or thorny issues involving choice of law. Pregnant people live, work, and raise families in red states. Prosecuting them will be easy.

We should be worried about other rights, but we should not skip ahead when something so major has already been lost. Yes, it’s time to worry about other rights. But let’s close our eyes to the devastation that will follow the loss of this one.

Sign and share Ms.’s relaunched “We Have Had Abortions” petition—whether you yourself have had an abortion, or simply stand in solidarity with those who have—to let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.

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Mary Ziegler is the Stearns Weaver Miller professor at Florida State University College of Law. She teaches and writes on the legal history of reproduction and constitutional law, family law and sexuality. Her latest book is Abortion and the Law in America: Roe v. Wade to the Present (Cambridge University Press 2020).