By Elaine Kamarck
Not since the days of Jim Crow—when some states segregated African Americans in public places and others didn’t—have the rights of Americans been so clearly differentiated by state as they will be if, as expected, the Supreme Court overturns Roe v. Wade, the 1973 decision legalizing abortion. States, however, are not waiting for the Court’s decision; thus, the contours of the post-Roe world are beginning to come clear. They are rapidly dividing into two camps—states that will ban all or most abortions and states that are codifying reproductive health protections while preparing for an influx of women seeking abortion.
Let’s start with the better-known story—states seeking to ban abortions. Beginning with the Mississippi law that bans abortions after 15 weeks and continuing with the Texas law that bans abortions after 6 weeks, states have rushed to enact copycat laws. As of this writing there are 12 states that have passed what is called a “trigger law.” These laws ban abortion after 6 weeks, 15 weeks or altogether and go into effect as soon as the Supreme Court reverses Roe v. Wade.
There are other states with laws on the books limiting abortion but until the Supreme Court acts, these laws have not been implemented and enforced. The one exception has been Texas where, in January, the Supreme Court sent a case involving the Texas law back to the lower courts in a decision which resulted in the closing of many abortion clinics and that was widely interpreted as indicating a favorable attitude toward the Texas law. Laws banning abortions usually occur in states where other laws and regulatory decisions have led many clinics to close.
The following map from the Guttmacher Institute shows which states are likely to end up banning most or all abortions.
While states enacting abortion bans have gotten the most media attention, states where the legislatures are sympathetic to abortion rights are also enacting laws to expand and protect such rights and to counter the movement in states limiting abortions. Sixteen states plus the District of Columbia protect the right to abortion through state law and other states, like New Mexico are likely to pass similar laws soon. California passed a major law protecting the privacy of women wanting abortions and addressing racial and economic inequities in access by providing abortion coverage under Medicaid. Oregon passed a law providing financial aid to abortion providers. Washington state passed a law prohibiting legal action against those who seek abortion and those who help them.
Last week the Maryland legislature passed a law which would appropriate money to train medical professionals, such as nurse practitioners; nurse midwives; and physician assistants, to perform abortions. Expect other states to follow in Maryland’s footsteps and increase their capacity to conduct abortions. (The state’s Republican Governor Larry Hogan, vetoed the bill but it was overturned by the legislature.)
What is likely to emerge from this picture is an America where women with unwanted pregnancies will still be able to get abortions. But to do so, they will need:
- access to information about abortion providers in other states,
- the ability and discipline to keep their plans to themselves,
- the time and financial resources to travel out of state.
Let’s look at each of these in turn. First, access to information is easier for those with financial means and those who are better educated. An upper middle-class mother with a 16-year-old with an unwanted pregnancy will be able to find a clinic and buy two plane tickets to Baltimore, much as well off women before Roe v. Wade traveled to Sweden. But abortion is most prevalent among women in their twenties who are low income. For poor and uneducated women, local public health entities (whether public or private) have provided information on everything from birth control to abortion, and they will be out of business.
In those states intent on banning abortion, legislators are also passing or proposing laws which ban or criminalize those who seek to help women obtain abortions. The Texas law, which is being copied in many states, allows private citizens to sue anyone who helps someone get an abortion. The plaintiffs could be awarded up to $10,000. In Missouri, state representative Mary Elizabeth Coleman has proposed legislation making it illegal to help someone get an abortion even in a different state. According to St. Louis Public Radio, “Coleman’s proposed amendments would criminalize facilitating the procedure: transporting someone to have an abortion, helping pay for the procedure or instructing them on ways to end a pregnancy.”
Non-profit organizations like Planned Parenthood that serve, in part, low-income women will be in substantial legal jeopardy if they give out information about how to get an abortion out of state. For educated women able to find their own information it means they need to keep quiet about what they are doing and where they are going, less it prompt a neighbor or a co-worker to tell on them.
Next, as the map indicates, getting from a state that prohibits abortion to one that doesn’t will mean, for many, a substantial trip—either on an airplane or a train. Even if the woman decided to drive, travelling to an abortion-legal state entails time off from work and lost income, hotel or motel costs, and food costs. Not to mention, the experience will involve the trauma of having to recover from a medical procedure far from home.
In abortion-legal states, there will no doubt be many private organizations springing up to help defray the costs of travel. But once again, access to this information will be difficult to come by for younger and less educated women. In post-Roe America, the most difficult part for women seeking abortions is not likely to be money or even geography—it is likely to be information. This is why anti-abortion states are considering a range of options to block information that will not impact all women equally. It will disproportionately hurt less educated women, women of limited economic means, and women of color.
And so, we may be looking at a dystopian future that resembles nothing so much as the underground railroad—where organizations in free states raised money and built organizations to help slaves get to freedom. One state cannot impose its laws on another state but to get around that, Congress passed the Fugitive Slave Law in 1850 which allowed bounty hunters to catch and return slaves in free states.
Will we face a dystopian future where the routes to abortion states become well organized and financed and where Congress tries to pass laws returning pregnant women to their states before they can have an abortion? Just days ago, a woman in Texas was arrested, charged with murder, and jailed after a self-induced abortion. Although no one is pressing charges, the event sent chills down the spines of women all over America. What’s next? Will state police force women of child-bearing age to have a pregnancy test before boarding a plane to Maryland, New York, or any other state where abortion is legal? Will local authorities hack into the computers of women and arrest those searching for information about abortions in other states or about medication abortions? In a nation where a substantial number of people revolted against mask wearing and Covid vaccines as an intrusion on their privacy and choice, efforts to stop abortion altogether are likely to run into a tsunami of fury.
Passing abortion bans is the easy part; preventing abortions will turn out to be much more difficult.
