It’s chaos out there.
The end of Roe v. Wade was foreseen, but in wide swaths of the country, it has still created wrenching and potentially tragic uncertainties. There have been numerous reports of patients screaming and sobbing in desperation when clinics canceled their appointments. Recipes for potentially deadly herbal abortions are going viral on TikTok. A group of hospitals, pharmacies and clinics in Missouri, a state where a so-called trigger law immediately banned abortion upon Roe’s demise, briefly stopped providing emergency contraception. In some states, doctors who perform in vitro fertilization fear they might be prosecuted for discarding unused embryos.
Every state with an abortion prohibition provides an exemption to save a mother’s life, but they’re not generally well-defined, so doctors and their attorneys have to decide on their own which interventions they can legally justify. What if a pregnancy might kill a woman? What if doctors believe it’s going to become life-threatening, but not immediately? How sick does a patient have to be before medical professionals can act? Some doctors, said Lisa Larson-Bunnell, a health care regulatory attorney at a Missouri hospital, want to know if they can use methotrexate, a drug used to treat some cancers, lupus and rheumatoid arthritis that is also an abortifacient. “The answers for these questions are going to be somewhat case specific,” she said.
The vagueness in these laws is an expression of contempt. The people who wrote them either don’t know enough about how reproduction interacts with other health conditions to think through what they’re prohibiting, or they don’t care. In the coming weeks and months, a lot of Americans who don’t think anti-abortion laws apply to them are likely to be shocked at how their health care is curtailed, often at the most vulnerable moments of their lives.
“The far-reaching implications of this Supreme Court decision and its impact on women’s health and people’s health in a broad range of ways is just beginning to be understood,” said Senator Tina Smith, a Minnesota Democrat who was once vice president at Planned Parenthood Minnesota, North Dakota, South Dakota.
The legal turmoil unleashed by the Supreme Court’s decision will fundamentally change the relationship between the states. As The Washington Post reported, a conservative legal group called The Thomas More Society is drafting model legislation based on Texas’ abortion bounty bill. It would let people in states where abortion is illegal sue those who help residents get abortions elsewhere. Model state legislation proposed by the National Right to Life Committee would create what the organization likened to RICO-style laws to target abortion providers who try to circumvent state bans, as well as those who publish information about where to get an abortion.
Under the N.R.L.C.-proposed law, transporting a minor out of state for an abortion without the knowledge of a parent would be a felony. It’s not clear whether, say, a teenager’s mother could be charged for taking her daughter across state lines for an abortion without telling the girl’s father. This could become a particularly ugly issue in divorce and custody battles.
For those on the wrong end of one of these attempted prosecutions, traveling in red states could become dicey. Already, Planned Parenthood of Montana has stopped providing medication abortions to people from states with abortion bans, citing “the potential for both civil and criminal action.”
I keep thinking that Democrats in Congress should make Republicans vote on each element of the regime the right is trying to impose on us. Before they had the votes on the Supreme Court to overturn Roe, Republicans were skilled at putting Democrats on the defensive while chipping away at abortion rights; think of the so-called Partial-Birth Abortion Ban Act of 2003, which outlawed a late-term abortion technique. There were good reasons for Democrats to oppose that law — it forced women facing health risks, or carrying fetuses with severe abnormalities, to undergo more dangerous procedures. But descriptions of the abortions at issue were gruesome, helping Republicans to paint pro-choice Democrats as extremists.
There are Democratic staffers who want to do something similar. One Democratic aide recently told me she wishes the Senate would try to codify the right to an abortion in cases of rape, incest and threats to a mother’s health, exemptions that are overwhelmingly popular with the public, but controversial among Republicans. Such a measure could both divide Republicans and, assuming they attempt to block it, highlight their fanaticism.
But the aide pointed out that pro-choice advocacy groups generally oppose such an approach, seeing it as a retreat. And Smith was skeptical, in part because she doesn’t think Republicans would let such bills even get to the debate stage. “I see no evidence that we have 10 Republicans who would be willing to provide those protections to women,” she said.
So until Democrats win enough Senate seats to finally get rid of the filibuster, Congress is unlikely to do anything to stave off the coming catastrophe. Plan A is for Democrats to win in November. As far as I can tell there is no plan B.
