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With the appointment of Brett Kavanaugh, Roe v. Wade is likely dead

How post-Roe America will look different from pre-Roe America

Abortion opponents and supporters hold signs in front of the Supreme Court in June. (Getty Images)

Much of the debate over the nomination of Brett Kavanaugh to succeed Anthony M. Kennedy on the Supreme Court will center on the fate of Roe v. Wade and the future of abortion rights in America. Nervous champions of the right to choose recall President Trump’s promise to only nominate “pro-life” judges to the court and marked Kavanaugh’s selection with a protest in front of the court. 

If Roe is overturned, the legality of abortion will be decided by individual states. How soon this might happen, and how many states would ban abortion, is not clear.

What is clear however, is that a post-Roe America will look very different than pre-Roe America did. While new medical technologies will prevent a return to the days of women dying from coat-hanger abortions, a zealous, well-organized antiabortion movement means that many more women will probably land in jail than they did in pre-Roe America.

The horror stories of the pre-Roe era, replete with women trying to self-abort with coat hangers or going to inept and unethical “back alley butchers,” have become the stuff of myths, repeated ever since 1973 as cautionary tales by abortion supporters (while minimized by abortion opponents).

The reality, however, was far more complicated. Illegal though they were, abortions were common, especially in the years immediately leading up to Roe. Some have estimated at least 1 million abortions per year took place in those years — a number, notably, that is higher than the one for 2014, the most recent year we have data. (The decline in abortions has been driven by both innovations in contraception and increasing restrictions on abortions). Those abortions were not all back-alley affairs: There were also “doctors of conscience,” well-trained individuals driven to provide illegal abortion by compassion, not greed.

Who had access to these doctors was often shaped by race and class. Women with means were more likely to know a reputable physician who would quietly perform an abortion, or to be able to travel to places where abortions were available. The “abortion committees” in hospitals, which greenlit only a limited number of abortions, overwhelmingly favored doctors’ private patients over those poorer women who came to hospitals’ clinics.

As a result, poorer and minority women suffered the majority of very real horror stories. As one person, who had been a medical resident in the 1940s in Harlem, told me with a sigh, “I have taken everything out of the human vagina that one could imagine ever fitting in there.”

We will never know the exact number of women who died from illegal abortion attempts, but some researchers have put it as high as 5,000 deaths per year. Many thousands more were injured, often losing their fertility.

Strikingly, even as abortions peaked in the pre-Roe period, the number of prosecutions (and convictions) of either providers or women who sought their help remained quite low. This low prosecution rate stemmed from two factors: Hardly any women filed complaints against abortion providers, and when a provider was on trial, juries were often reluctant to convict.

But this would probably change if the court reverses course on abortion rights.

The Center for Reproductive Rights lists 23 states, mainly in the South and Midwest, at “high risk” of banning abortion. Assuming that even a handful of them follow through, millions of women will have to travel to other states should they decide to have abortion.

That will be true even short of a complete overturn of Roe. A Supreme Court with five justices skeptical of a constitutional right to abortion will allow even more cumbersome restrictions on the practice than already exist. Such restrictions would occur at exactly the moment when the Trump-Pence regime’s attacks on contraception will lead to more unwanted pregnancies and increased demand for abortion.

We don’t have to tax our imaginations to guess at the consequences, because for many women, the hardships of a post-Roe world already exist. Seven states are down to only one clinic, and some of these do not perform abortions after the first trimester. Researchers have also located 27 abortion deserts, cities in which there is no abortion clinic within 100 miles. Only 15 states permit the use of Medicaid funds to pay for poor women’s abortions.

Geographic areas without access to abortion place an extreme burden on the disproportionate number of abortion patients who are poor (50 percent are below the official poverty line and another 25 percent are classified as low income). Besides having to pay for the procedure, they need the funds to pay for lodging (some states have waiting periods of 24 hours or more, necessitating overnight stays), child care (about 60 percent of abortion patients are already parents) and of course for the travel itself. And this journey also involves confronting one or more days of lost wages as well.

This burden drives them to seek other solutions.

“Medication abortion” — an option that was not available in pre-Roe days — has therefore become increasingly appealing to women. Medication abortion is already widely used in U.S. clinics, but new restrictions or an outright ban on abortion in some states will further fuel an already robust Internet black market for mifepristone and misoprostol, the two drugs used in this procedure. Misoprostol, though somewhat less effective when used alone, is easier to obtain as it can be bought over the counter in various countries and is even available at border-town flea markets.

A 2015 study found at least 100,000 Texas women attempted to end their pregnancies on their own, with some portion using medication abortion drugs. This figure is hardly surprising given that the number of clinics in Texas went from about 40 to 20 in recent years.

Medication abortion is far safer than many of the illegal methods that were attempted pre-Roe, which will probably mean fewer deaths or emergency room visits from women using coat hangers or other dangerous methods to try to end unwanted pregnancies in a post-Roe America.

But how the legal system would handle these illegal medication abortions  is a huge open question.

Unlike the situation before Roe, when there was not a well-organized national antiabortion movement and prosecution of illegal abortion was very idiosyncratic, in a post-Roe world, we can anticipate pressure on the criminal justice system to avidly locate and prosecute extralegal users of medical abortion. The oft-stated claim of antiabortionists that they don’t want to punish women seeking abortions will be revealed as a sham.

Already, the National Advocates for Pregnant Women has reported cases of hundreds of pregnant women being arrested and jailed for various offenses, including attempts at self-induced abortion. Will health professionals who help women obtain these medications and offer advice on how to use them also be prosecuted? Will women coming to hospitals because of a miscarriage be suspected of actually undergoing a medication abortion and be reported to authorities by hospital personnel, as is occurring in Latin America?

These are among the questions that are preoccupying the abortion rights community. What we already know, however, is that while a post-Roe America will be quite different from the pre-Roe era, it will still be poor, largely minority women who will struggle the most.