Jurisprudence

We’re Not Going Back to “Before Roe

We’re headed somewhere worse.

A wire hanger
Photo illustration by Slate. Photo by Getty Images Plus.

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.

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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.

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Prior to Roe, faith groups were hardly monolithic in their opposition to abortion. Many religious leaders stood firmly on the side of the health and welfare of mothers. The National Association of Evangelicals passed a resolution in 1971 recognizing “the necessity for therapeutic abortions to safeguard the health or the life of the mother, as in the case of tubular pregnancies” and conceded that pregnancies “resulting from rape or incest … may require deliberate termination, but the decision should be made only after there has been medical, psychological and religious counseling of the most sensitive kind.” The Southern Baptist Convention had passed resolutions affirming that people should have abortion access for various reasons in 1971, 1974 and 1976. But in the decades since, hard-line religious opposition to Roe has both solidified and moved the goal posts. Since 1984, the Republican Party platform has called for a constitutional amendment banning abortion nationwide. The ground has shifted.

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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.

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Pause to remember that before Roe, it was largely the physicians who performed abortions who were on the hook for criminal penalties. But as states continue to enact fetal personhood laws, we will also continue to see draconian punishments meted out to women who miscarry, who use drugs during pregnancy, who attempt suicide while pregnant, and who suffer complications around a C-section. The case of Brittney Poolaw—the 19-year-old Oklahoma woman who went to the Comanche County Memorial Hospital after suffering a miscarriage at home and was sentenced to four years in prison for manslaughter for drug use—is a pretty good predictor of where we are headed. If a fetus or embryo is a person for purposes of the law, it stands to reason that mothers are going to be on the end of both the “justice” and “mercy” that Dannenfelser was meting out in her interview with Chotiner. A report by the National Advocates for Pregnant Women and the National Association of Criminal Defense Lawyers found that there are “more than 4,450 crimes in the federal criminal code, tens of thousands of state criminal provisions—including criminal abortion laws—still on the books, as well as state conspiracy, attempt, and accomplice statutes that could subject a wide range of individuals to criminal penalties if Roe is overturned.” Even criminal laws that have absolutely nothing to do with abortion on their face—including prohibitions on possession of a “dangerous drug” —can be, and have been, used by zealous prosecutors to punish abortion patients.

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It is important to understand that whatever reality looked like pre-Roe, it was not solely or fundamentally a theological opposition to female autonomy that powered the opposition to reproductive freedom. Back then, it was more of a paternalistic notion that women were essentially full-size children who needed to be protected from the predations of abortion providers, yes, but also protected from draconian punishment by the states. In the amicus brief filed by Finnis and George, there is a proposed fix for the problem of women who make bad choices once abortion is illegal everywhere. As they explain:

States may consider degrees of culpability as mitigating factors or altogether immunize from prosecution certain participants in wrongful killings. Here such policy choices serve legitimate purposes by fairly balancing the child’s humanity and her unique physical dependence and impact on her mother. And the mother’s constitutional rights could require States to allow urgent or life-saving medical interventions even when these would unavoidably result in fetal death.

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The state, in short, doesn’t have to punish mothers who end their pregnancies, either intentionally or by accident. The state in its infinite mercy can weigh the circumstances and sometimes go easy on the pregnant woman, who, for instance, sought “life-saving medical interventions.” We now have all the exposure of life pre-Roe but none of the paternalistic protections: Women are now seen as fully autonomous moral agents, which means that they will be legally on the hook for endangering the babies they carry, but they will also be punishable as autonomous adults. Women thus remain children for purposes of pregnancy and giving birth, but have become adults for purposes of criminal liability.

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It’s easy to lull yourself into the false belief that a reversion to life pre-Roe would simply mean that the reproductive freedom movement needs to redouble efforts to fund and transport persons needing abortions to more hospitable states. That would be awful, we think, but maybe not that catastrophically bad. But as Goldberg warned in 2019, “the past can prove inadequate to understanding the depredations of the present.” We are not in fact moving “backward” to life before Roe. We are more likely moving sideways into a fundamentalist religious regime in which life pre-Roe will come to look like a vastly less terrifying option than a world in which women are subject to revanchist religious claims—claims with no support whatsoever in the Constitution—about the lives they may carry, the unknown crimes they may commit, and the choices they are no longer permitted to make.

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