Very late Wednesday night, just before midnight, five right-wing fanatics on the United States Supreme Court took the cowardly step of preemptively overruling Roe v. Wade from the shadows. They did this quietly and surreptitiously, mindful that they would have risked the full wrath of the American public by explicitly overturning Roe, a decision that has stood for nearly half a century in guaranteeing the right to terminate one’s own pregnancy without governmental interference.
The Texas law approved and allowed to stand Wednesday night by the right-wing Supreme Court majority prohibits virtually anyone from terminating a pregnancy after six weeks. In this point alone it stands as a wholesale, complete repudiation of Roe v. Wade. It also deputizes and rewards private citizens who act as a type of Stasi, permitting them to sue friends, neighbors, doctors, and medical clinics assisting anyone who may be contemplating ending an unwanted pregnancy, also a repudiation of Roe v. Wade.
Of course, the Texas statute sanctioned by the court’s conservative majority applies only in that state, but in a few short weeks, it will be the law of the land in at least 15-20 Republican-dominated states whose legislatures will leap to copy its provisions. The “domino effect” of all of these states passing identical laws will be to create a contiguous landmass encompassing over half of the U.S. where abortion is essentially illegal. The fact that the court’s conservative majority stood nearly united in this unprecedented repudiation and disregard of prior precedent strongly suggests the law and others like it will be the means this wholly politicized and fanatical court uses to ensure that women are relegated to a permanent underclass when it comes to controlling their own bodies.
Of course, for those wealthy enough to afford it, one solution seems simple enough: Simply drive or fly to a Democratically controlled state which respects reproductive choice. But as was obliquely illustrated in a pro-Biden/Harris campaign ad, released by MeidasTouch shortly before the 2020 election, that is an illusory hope. The Texas law permit “bounties” in the forms of lawsuits and recoupment of attorneys’ fees for those who “privately” enforce the law, but since its ultimate intended effect is to deter and stop abortion at all costs, if people can simply evade its provisions by going out of state it cannot have its desired result.
Accordingly, the next logical step, of course, is to criminalize—either explicitly or in effect—crossing state lines to obtain an abortion.
The MeidasTouch ad demonstrating how this would apply in practice is below. It depicts a woman stopped at the border by police while trying to transport her daughter to another state to obtain an abortion.
As noted in this 2019 article by AP reporter Christina Cassidy, in 2017 (the last year when figures were available), about 10% of all abortions were performed upon women who had traveled outside their own state to receive them.
Nationwide, women who traveled from another state received at least 44,860 abortions in 2017, the most recent year available, according to the AP analysis of data from 41 states.
That’s about 10% of all reported procedures that year, but counts from nine states, including highly populated California and Florida, and the District of Columbia were not included either because they were not collected or reported across the full six years.
That figure is virtually certain to increase drastically as those desperate to terminate their pregnancy attempt to evade these new laws designed to stop them. In order to close this potential avenue of escape, the state of Georgia, for example, introduced a so-called “fetal heartbeat” anti-choice law (similar to the one introduced in Texas) which suggests that a Georgia resident traveling out of state to obtain an abortion (and those who transport and assist them) may be charged with conspiracy to commit murder.
As explained by Mark Joseph Stern, writing for Slate:
If a Georgia resident plans to travel elsewhere to obtain an abortion, she may be charged with conspiracy to commit murder, punishable by 10 years’ imprisonment. An individual who helps a woman plan her trip to get an out-of-state abortion, or transports her to the clinic, may also be charged with conspiracy. These individuals, after all, are “conspiring” to end the life of a “person” with “full legal recognition” under Georgia law.
Whether one state can actually criminalize an activity legally permitted in another state (such as Georgia’s abortion law does) is actually a thorny jurisdictional question (generally the answer is “no”). But when an identical law is passed in multiple, contiguous states prohibiting abortions after six weeks, the jurisdictional issue becomes largely moot. That is exactly what is going to happen, now that the Supreme Court has refused to act on the Texas law, which criminalizes virtually all abortions after a “fetal heartbeat” is detected, well before many people even realize they are pregnant. Other adjoining states will follow suit, making it effectively impossible for most to obtain an abortion (except the wealthiest, who can afford to travel freely).
The Texas law was specifically drafted to replace state enforcement with private lawsuits, with a view toward refuting any potential constitutional challenges. But it’s naive to expect that once a private action is filed, and the name of “the offender” is publicized, that law enforcement won’t be alerted to any attempt they make to avoid the law, such as the scenario depicted in the MeidasTouch ad, above. The logical thing for the police to do with such information is to arrest the perpetrators, and particularly, those attempting to secure an abortion out of the state (or “assisting” in that attempt). This is particularly likely in a state where the governing political party regularly and loudly touts its alignment with law enforcement, such as Texas. And once the names of those seeking or faciliatating an abortion, along with their license plates, vehicle registrations, and other personal information are entered into a database and shared with other states’ law enforcement, we can expect the scenario in that ad to be played out, again and again. After all, what’s illegal in Texas will soon be illegal in Oklahoma, Arkansas, Mississippi, etc…
Again, this is an action that was deliberately and intentionally carried out by the Supreme Court’s governing anti-choice conservative majority, carefully calculated to cause as little stir and controversy as possible. In other words, it was a wholly ideological decision, as evidenced by the stunned reaction of the pro-choice members of the court who protested in dissent. As Justice Kagan expressed it: “The majority’s decision is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend.”
But it’s not unreasoned or inconsistent if you take political ideology into account. Turning women into vassals and forced incubators is perfectly consistent for a political party that has made this its singular, overarching focus for well over four decades. The MeidasTouch ad was prepared in support of the Biden/Harris campaign. But as long as that conservative Supreme Court majority exists there is little that President Biden can do to reverse their rulings (although there are several actions that could blunt them). And while adding justices to the Supreme Court sounds like one excellent solution, the unfortunate reality is that thus far, this seems highly unlikely to occur given the current makeup and mindset of many in the Democratic Party.
The anti-choice movement has never been about stopping abortion, but about controlling women, based on an outmoded religious dogma and patriarchal fanaticism that has no place in modern society. Stopping abortion is not the end game for these people; it’s simply a stepping stone for further efforts to control and dominate anyone with a uterus. Their chosen vehicle is the Republican Party. So short of moving to a Democratic state, there is really only one viable course for people who live in these GOP-dominated enclaves and who aren’t willing to submit to governmental control over their bodies and lives: to organize, mobilize, and vote out the people who pass such malevolent and misogynistic laws.
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