Abortion Bans Are Imminent Unless Democrats Change Course Fast

A leaked SCOTUS decision draft suggests the court is planning to overturn Roe v. Wade, permitting states to ban abortion. The response from Democrats should be obvious: skirt the Supreme Court and demand federal legislation codifying the right to abortion.

An activist speaks outside the Supreme Court in protest against a Texas abortion law that prohibits the procedure from six weeks into a pregnancy on September 2, 2021 in Washington, DC. (Drew Angerer / Getty Images)

Abortion looks set to be illegal in half the country within weeks. Politico obtained a leaked draft of the upcoming Supreme Court decision in which Justice Samuel Alito argues that the 1973 Roe v. Wade decision found a right to abortion in the constitution that was never there. The decision would overrule both Roe and the 1992 Planned Parenthood v. Casey decision that upheld the abortion rights Roe established.

Demonstrations defending the right to abortion are planned at federal courthouses across the country.

The final decision in Dobbs v. Jackson Women’s Health Organization isn’t expected until June, but if the leaked draft holds, states will be permitted to ban abortion, and at least half are likely to do so. A dozen states already have trigger laws in place that will automatically ban the procedure as soon as the Court allows it. And 58 percent of US women of childbearing age live in states with hostile legislatures.

The decision will force hundreds of thousands of women and others who need abortions to scramble to try to get to states in which the procedure is legal, or to procure abortion pills and procedures clandestinely. Those without adequate resources will be forced to carry pregnancies to term and give birth against their will, a form of torture. In states where abortion is illegal, those who perform abortions will be arrested, and those who have abortions will be interrogated and jailed if they refuse to talk.

Carnage and Incarceration

The new decision would sic cops on doctors and trigger punitive measures against women who obtain abortions. Oklahoma recently passed legislation that would provide ten years in prison and up to $100,000 in fines for performing an abortion.

Anti-abortion forces piously promise that women getting abortions would never be subject to arrest, only those terrible abortionists — a bold lie given that women are already being arrested. A woman in Texas was charged with murder in March for allegedly giving herself an abortion. Charges were only dropped after a national outcry. Around twenty-five women have been prosecuted in the United States for their miscarriages over the last decades. Until she won a reprieve, Purvi Patel was sentenced to twenty years in prison for concealing her late miscarriage. Jennie Lynn McCormack in Idaho used abortion pills and was sentenced to five years in prison. She appealed and managed to get her conviction and the law overturned.

Cases like these have generally been won on appeal as the homicide and feticide statutes used were found to be inappropriate. But that’s only because, up until now, states couldn’t classify abortion as murder. Soon, they’ll be free to bring such charges against doctors and patients.

A lot of pro-choice rhetoric suggests that women are going to be dragged back to a time before Roe v. Wade enshrined the right to abortion. In fact, the legal situation in the 1960s is not a particularly good guide for what we will see next. The United States has become much more of a police state since then, with mass incarceration and heavy sentences that outstrip all other countries. The United States has 33 percent of the world’s female prison population.

Abortion Pills Change Things

While the carceral state has expanded, medical technology has also advanced since the 1960s, when five thousand women a year were estimated to have died from unsafe illegal abortions. Serious complications were so common that whole hospital wards had to be dedicated to botched abortion cases.

Nowadays, doctors who study self-abortion say that attempts to abort with sharp objects, blunt trauma, and poisons are much less prevalent because abortion pills have become more available on the gray market and from overseas providers such as Aid Access. And the Food and Drug Administration recently loosened restrictions on abortion pills to make them available by mail in states that allow them.

Abortion pills are safe and effective, and they are currently used in more than half of medically supervised abortions. But while those who use abortion pills are safe medically, they will not be safe from anti-abortion state laws and prosecutors bent on terrorizing people as a deterrent to the use of pills.

The People’s Elected Representatives

In the leaked draft decision, Alito writes: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” This sounds great in theory, and abortion supporters themselves have even made this argument. Large majorities of people in the United States (between 60 and 72 percent) support Roe v. Wade, so a healthy legislative system would have long since made abortion legal through federal law. But ours is moribund.

In September, anticipating a Supreme Court bloodbath, Democrats in the US House passed the Women’s Health Protection Act, a law codifying the rights enumerated in Roe. A Senate vote defeated the act 46-48. Two Republican senators who allegedly support abortion rights, Lisa Murkowski and Susan Collins, voted against the bill, citing quibbles with its language. But even if they had voted for it, the filibuster rule means that forty-one senators can nix anything, and they no longer have to make long speeches or wear adult diapers to do so.

Short of abolishing the Senate altogether — most democracies have unicameral legislatures — it would certainly help to get rid of the filibuster rule. Not just abortion but a host of vital bills are being held hostage by the party out of power, from climate change legislation to a higher minimum wage to union rights.

Having been unable to pass most legislation that would actually help communities pillaged by corporations and oppressed by right-wing state legislatures, Senate Democrats are now set to use the issue of abortion to try to gin up support in the midterm elections. But even if a massive popular uprising on this issue allows Democrats to hold on to the Senate, unless they abolish the filibuster rule, a law protecting abortion access has no chance. What can they promise us tomorrow that they can’t deliver today?

It’s time for Democrats to defend democracy and make abortion legal throughout the country.