Mary Ziegler is a professor of law at University of California, Davis, and the author of Abortion and the Law in America: Roe v. Wade to the Present.Bill Lax/Supplied
Mary Ziegler is a professor of law at University of California, Davis, and the author of Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.
The United States Supreme Court has reversed its best-known constitutional precedent, Roe v. Wade, and destroyed the right to choose abortion. States will now have almost unlimited discretion to criminalize abortion. Does this mean that Americans will go to prison for deciding to end a pregnancy?
The leaders of the American anti-abortion movement insist that they do not want to punish women and other pregnant people. These activists point to the history of abortion in the United States. As in Canada, criminal abortion laws spread in the United States in the 19th century. By the end of the century, most American states criminalized abortion early as well as late in pregnancy, and some authorized the prosecution of patients as accomplices in their doctors’ crime. In practice, however, prosecutors rarely targeted women, painting them as innocent victims of brutish seducers and dishonest doctors. Women were forced to testify and were publicly shamed but rarely sent to prison themselves.
At least for a time, the Roe decision put an end to criminal abortion laws in the United States. In the 1960s and 1970s, abortion laws were spottily enforced, but a group of Americans mobilized to guarantee access to abortion services. Decided in 1973, the Roe opinion held that the American right to constitutional privacy was broad enough to cover a pregnant person’s decision to terminate a pregnancy.
Roe did not mean that pregnant people were always protected from criminal prosecution. In the 1980s and 1990s, when Ronald Reagan drummed up a panic about crack cocaine and drug use, prosecutors punished people for their conduct during pregnancy. Using laws on everything from “feticide” to child abuse, prosecutors sent women to jail for using drugs, getting into fights or other risky behaviours. Almost always, these pregnant people were poor, and more often than not, racialized.
At roughly the same time, anti-abortion leaders in the U.S. and Canada began presenting themselves as women’s defenders, arguing that abortion damaged patients’ bodies and psyches. Nevertheless, American foes championed the prosecution of pregnant people, insisting that, Roe aside, rights began at fertilization – and that pregnant drug users deserved to be in prison.
But when it came to abortion, activists wanting to eliminate the procedure insisted that women not be punished. The movement proclaimed itself to be “pro-woman and pro-life.” Crisis pregnancy centres, which offered limited support for pregnant people and tried to persuade them not to have abortions, insisted that the “abortion industry” victimized women for profit. Arguments about protecting pregnant people even defined the movement’s constitutional agenda. Abortion foes believed that the Supreme Court protected abortion because it believed abortion access had made American women more equal. If abortion did not make anyone more equal, abortion opponents argued, then there was no justification for abortion rights.
Now, Roe is gone, and states are seriously considering the idea of punishing women. What has changed?
First, a more punitive, extreme wing of the movement is growing. Self-proclaimed abortion abolitionists have ties to the movement that blockaded abortion clinics across the United States in the 1980s and 1990s. Recently, the abolitionists have written laws criminalizing pregnant people for having abortions and promoted them across the country. Extremists now have greater sway because anti-abortion leaders are less worried about alienating the Supreme Court and sabotaging the fight about abortion rights – the Court will likely sign off on any abortion ban. And anti-abortion activists no longer fear offending the Republican Party, especially in deeply conservative states where Republicans face no real political competition. Even at the national level, the Republican Party depends heavily on anti-abortion voters – and increasingly relies on rallying the base rather than appealing to the largest voting majority.
The abolitionists are also gaining ground because of telehealth abortion. Americans can get abortion medications from international nonprofits or from doctors in states that protect abortion. It will be difficult for states to crack down on these providers. Progressive states are passing laws shielding their doctors from prosecution for performing abortions on patients from out of state. Neither Canada nor any other country that recognizes abortion rights will extradite a doctor or pharmacist for providing abortion access. That means that it is far easier to punish pregnant people who live in conservative states than it is to target anyone else.
In the United States, those protesting the reversal of Roe insist that they won’t go back to an era in which abortion was a crime. In truth, the post-Roe world will be very different than what came before, and pregnant people may be the ones to pay the price.
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