ROE, ROE, ROE YOUR BOAT GENTLY DOWN…TO POLAND?

I must have sat down five or six times to write something comprehensive about Roe v. Wade (1973), but the subject is simply too big for a blog post, so I’ve given up on that.  Instead, let me share with you a few things about abortion in the United States I learned while researching for that post.  But first, a quick look at the status of Roe.

Roe established a constitutional right to an abortion up to the time a fetus is viable outside the womb, generally accepted to occur at about 24 weeks.  The Supreme Court heard a challenge to Roe earlier this month in a case called Dobbs v. Jackson Women’s Health Organization.  That case arises out of Mississippi’s Gestational Age Act, which was deliberately crafted to give the Court the opportunity to overturn Roe. The Act prohibits abortions after a fetal heartbeat can be determined, generally accepted to occur at about 15 weeks.   

While the Gestational Age Act, on its face, might not seem to present a practical limitation on the right to abortion—most abortions are performed well before the statute's 15-week cut-off—the state’s Attorney General has specifically requested that the Court overturn Roe and return the issue of abortion to the states.  Thus, Dobbs will determine not only the constitutionality of the Mississippi Act, but also the constitutionality of Roe.

It’s the broad consensus of Court watchers who heard the oral arguments that the five Justices hand-picked for the Court by the Federalist Society (Alito, Thomas, Gorsuch, Kavanaugh, and Barrett—all ultra-conservative Catholics) are eager to overturn Roe.  (I wrote about the Federalist Society and its connection to Opus Dei, a curious Catholic cult here:  https://mkj-actually.blogspot.com/2019/10/signs-of-contradiction.html)  As Linda Greenhouse points out in an opinion piece in the New York Times, the timing of bringing Dobbs before the Court is no accident:

Mississippi had actually filed its abortion appeal in the previous term, in June 2020, when Justice Ginsburg was still alive, but it wasn’t until nearly a year later, this past May, that the court agreed to hear it. The case, Dobbs v. Jackson Women’s Health Organization, met none of the usual criteria for deciding whether to hear a case: In overturning the state’s ban on abortion after 15 weeks of pregnancy, the United States Court of Appeals for the Fifth Circuit simply applied binding precedent, and there was no dispute among the lower federal courts for the Supreme Court to resolve. What the case offered was a vehicle the newly empowered anti-abortion super-majority was waiting for.

Justice Roberts, also a Federalist Society pick and a Catholic, seems willing to entertain the fiction that the fetal heartbeat basis for the Mississippi law isn’t really so different from the viability-outside-the- womb basis established in Roe.  He is thought to have advocated for the 15 week-cut-off to avoid overturning Roe while significantly weakening it, saying that most abortions occur during the first trimester anyway (which is true), so what’s the big deal?  The three liberal Justices (Breyer, Sotomayor, and Kagan) aren’t buying his slippery slope approach and want Roe to stand.  We’ll find out next summer if Court watchers are right and Roe is toast.  If it is, then abortion will become once again a matter for the states to decide.

While we await the Court’s decision, here are a few debunked myths and interesting facts to consider about abortion in general and Roe in particular.

Who is the typical abortion patient in the United States? 

Forget the image of a crack-smoking, Facebook-scrolling, Jerry Springer-watching unemployed high school dropout who has gotten pregnant several times before by different men, has ended those pregnancies without a second thought, and just wants to have more unprotected sex.  According to The Upshot published in the NYT, (absolutely required reading!) the typical American abortion patient:

·       is already a mother,

·       is in her late 20s,

·       already has some college,

·       has a low income,

·       is unmarried,

·       is in her first six weeks of pregnancy

·       is having her first abortion, and

·       lives in a blue state. 

This is the profile of the typical American pregnant woman who will be affected if Roe is overturned.

Roe actually reduced the percentage of pregnancies terminated by abortion.

Although abortion was legal in the colonies, by the end of the 19^th c., abortion had been made a criminal offense in every American state except when the procedure was necessary to save the life of the mother.  Despite its illegality, by the 1950s, an estimated 25% of pregnancies were terminated by abortion.  According to the CDC, however, that percentage of abortion-terminated pregnancies actually decreased after Roe despite greater access to legal abortion providers.

The CDC began tracking abortion data in 1972, a year before Roe was decided.  After Roe established a constitutional right to abortion, the number of reported abortions increased rapidly, reaching peak levels in the 1980s, before steadily decreasing.  By 2016, the latest year for which such data is available, according to this CDC Report, the percentage of reported abortions as compared to live births declined to about 18.6%.  The 6.4% reduction in the 25% estimated during the 1950s could be due to a variety of factors---better access to contraception or fewer teenage pregnancies, for example.  But what that reduction is certainly not due to is a restriction on access to legal abortion.  On the contrary, and what is counterintuitively compelling is that Roe’s guarantee of a constitutional right to abortion and its resulting increase in access to legal abortion providers did not increase the percentage of voluntary pregnancy terminations.  Quite the opposite.

Roe saves women’s lives.

If the decrease in the percentage of reported abortions as compared to live births following Roe was unexpected, Roe’s decriminalization of abortion predictably (and thankfully) decreased the number of abortion-related deaths.  According to the same CDC Report from 2016 (emphasis in bold):

[The] CDC identified three abortion-related deaths for 2015, the most recent year for which data were reviewed for abortion-related deaths. 

Further, according to the National Institutes of Health:

Deaths from legal abortion declined five fold between 1973 and 1985 (from 3.3 deaths to 0.4 death per 100,000 procedures), reflecting increased physician education and skills, improvements in medical technology, and, notably, the earlier termination of pregnancy.

Clearly, Roe had a lot to do with the factors cited above.  But wait, it gets better.  According to the same NIH report (emphasis in bold):

Legal-abortion mortality between 1979 and 1985 was 0.6 death per 100,000 procedures, more than 10 times lower than the 9.1 maternal deaths per 100,000 live births between 1979 and 1986.

Having a baby turns out to be more dangerous for a pregnant woman than having an abortion. 

So, not only did Roe reduce the rate of abortion, it also reduced the maternal death rate from abortion; in addition, it protected women from the risk of death by carrying a pregnancy to full-term.  If Roe’s guarantee of a constitutional right to abortion led to these social goods, then what’s the beef over Roe?  What is motivating Dobbs?

Abortion is a powerful weapon in the culture wars.

That abortion is political may seem obvious, but the story of how it got that way is less so.  Linda Greenhouse (mentioned above), the Supreme Court reporter for the New York Times and a lecturer at Yale Law School, and Reva Siegel, a chaired professor at Yale Law School, explore the history of abortion and shed light on its politicization in The Unfinished Story of Roe v. Wade. Their monograph is not just a litigation history of the landmark case; it’s also a history of abortion in the United States.  As the authors tell it, the abortion movement was originated out of a medical concern that ignited a public health campaign, which in turn developed into a legal reform movement, which was subsequently embraced by the feminist cause, and ultimately became the tip of the spear in the culture wars.  How did a medical procedure become such a cultural flashpoint?  The answer to that question has everything to do with religion and an election.

Let’s start with religion.  As calls for state law reform were amplified by the feminist movement, the Catholic clergy, a strong opponent of contraception and abortion, got equally organized and birthed the right-to-life movement. From The Unfinished Story of Roe v. Wade:

In 1967, recognizing that reform was moving swiftly and that more than half of all Catholics disagreed with the official Church position, the National Conference of Catholic Bishops (NCCB) funded a national educational campaign to provide institutional support for the right-to-life cause; a year later, a young priest named Bishop James McHugh established the National Right to Life Committee (NRLC) to provide resources to oppose state-level legislative reform.

During this period, the Catholic Church reaffirmed its view that the purpose of sex was to create new life within marriage, reiterating its prohibition on birth control. But in the midst of a revolution in sexual mores and with American Catholics bitterly divided over whether to preserve the Church’s ban on contraception, the NRLC built the case for maintaining the criminalization of abortion in terms that made no reference to sex. Instead, the NRLC placed the fetus at the center of the argument, emphasizing its right to life within a constitutional and human rights framework.

And then came the 1972 re-election campaign of Richard Nixon.  From The Unfinished Story of Roe v. Wade:

During the 1972 presidential campaign, leaders of the Republican Party—which to this point had supported liberalization of contraception and abortion—began to experiment with antiabortion advocacy in an effort to recruit Catholic voters away from their traditional allegiance to the Democratic Party. An important figure was Kevin Phillips, a political strategist for the Nixon White House who made his name forecasting that the Republican Party could recruit white Southern Democrats to the GOP by appealing to race (the so-called “Southern Strategy”). Phillips was quick to recognize another source of new Republican voters: by adopting an antiabortion stance, Republicans might attract culturally conservative Catholic Democrats.

Patrick Buchanan, another key Republican strategist, saw in the abortion conflict a chance to capture Catholic votes and much more. Working with Richard Nixon’s presidential campaign, Buchanan identified new ways of attacking abortion that would tap into voters’ unease with those who supported abortion—among them, the youth movements calling for liberalization of abortion laws as part of a broader progressive agenda for fundamental social transformation; movements then tying abortion to sexual revolution, civil rights, social justice, and an end to war; and, prominently, feminists emphasizing abortion’s role in achieving women’s equality in the home and workplace…the topics at the heart of what he would later famously call the “cultural wars.”

The Democrats were painted as the party of "amnesty, acid, and abortion," despite the fact that, according to The American Conservative, its presidential candidate, George McGovern, was in favor of letting the states set abortion policy, a position that would come to be aligned with the pro-life movement today. In any event, the Southern Strategy worked and Nixon won with the strong support of the right-to-life movement, even though at the time of the 1972 election, 64% of Americans agreed that abortion should be a decision made solely by a woman and her doctor, and of that number, 68% were Republicans and 59% were Democrats.  Abortion had now officially entered the political realm and proved to be an effective weapon in the culture wars.

If Roe is overturned, abortion will become a matter for state legislatures to decide.

The Guttmacher Institute, a New York non-profit that advocates for reproductive rights,  conducted legislative research in October of this year on the then-current state of abortion laws in the United States.  The research found that if Roe is overturned, 21 states will automatically ban abortion, and five more states are likely to nearly ban the procedure.  From the Guttmacher research:

By the time the Supreme Court hears oral arguments in the Mississippi case, there will be nine states with an abortion ban still on the books from before Roe v. Wade, 12 states with a trigger ban tied to Roe being overturned, five states with a near-total abortion ban enacted after Roe, [of those 26 states, there are] 11 states with a six-week ban that is not in effect and one state (Texas) with a six-week ban that is in effect, one state with an eight-week ban that is not in effect and four states whose constitutions specifically bar a right to abortion. Some states have multiple types of bans in place. 

The Guttmacher chart below shows the 26 states involved.

Details on the type of legislation adopted or likely to be adopted by those 26 states is contained in the Guttmacher report, which adds: 

Beyond the 26 states certain or likely to attempt to ban abortion immediately, other states have demonstrated hostility toward abortion by adopting multiple restrictions in the past, but are not likely to ban abortion in the near future. However, this analysis may change in the next few years.

It is also important to remember that Roe would not have to be overturned entirely to start the process of activating some trigger laws. If the Court weakens or undermines existing federal constitutional protections, that may be enough momentum for states to start implementing these bans.

Women will continue to seek surgical abortions, whether Roe stands or falls.

How will these bans or near-bans affect a woman who lives in one of those 26 states and seeks an abortion?  If she wants a surgical procedure, she will have to leave her state and travel to another state (or country) where abortion is still legal.  Clearly, this adds expense, time, and inconvenience to the calculus (who takes care of her kids, how does she get time off from work, how can she finance the trip, etc.?)  At the heart of this calculus is how far/long she must travel.  This Guttmacher Travel Distance article, which embeds an interactive map, gives some worst case examples (N.B., these are one-way distances):

The new data, presented in an interactive map, show the significant impact on people seeking abortion under three legal scenarios that could become reality in those 26 states—a total ban, a ban at 15 weeks of gestation and a ban at 20 weeks of gestation. For instance, a total ban on abortion would increase the average one-way driving distance to the nearest provider by:

630 miles or 1,720% in Louisiana

567 miles or 6,803% in Florida

525 miles or 3,017% in Texas

428 miles or 638% in Mississippi

247 miles or 837% in Utah

Abortion by mail may not be a viable alternative.

The FDA recently liberalized its rules concerning the distribution by mail of Mifepristone, an abortion pill used to end pregnancies in more than 60 other countries, according to the FDA, including in at least 14 nations in Europe.  In response, as noted in The Lily:

Nineteen states have already outlawed abortion by mail, even when pills are prescribed by a licensed U.S. physician, requiring an in-person visit. In addition to S.B. 8, the Texas law which empowers any private citizen to sue anyone who helps someone access abortion after the legal limit, Texas implemented another law on Dec. 2 that outlaws the abortion pill entirely at seven weeks, three weeks before the previous 10-week cutoff [on abortion by medication set by the FDA]. The law also bans prescribing abortion pills online or mailing them to Texas-based patients. Providers who violate the law could face jail time and fines up to $10,000.

This article in the Washington Post goes on to say:

Loosening the federal restrictions will not change abortion access in many states with stricter regulations on the pills. Nineteen states have banned receiving the drugs through telehealth appointments, making the relaxed FDA rules irrelevant in places including Alabama, Arizona and Missouri. Some states impose other limitations on medication abortion, including allowing only physicians to prescribe the drug and mandating that patients take the pills under a doctor’s supervision rather than at home.

As federal officials have moved to ease restrictions on the drug, many states have tightened access. At least 16 states have proposed new restrictions on medication abortions this year,…

While a majority (61%) of Americans support abortion, that is not the case in some of the states that have restricted or banned the procedure.

According to research by Pew Research:

A review of public opinion data shows that majorities of adults in four of the seven states that enacted stringent new laws in 2019 – Mississippi (59%), Alabama (58%), Kentucky (57%) and Louisiana (57%) – say abortion should be illegal in all or most cases. Opposition to abortion falls short of a majority opinion in the other three states – Missouri (50%), Georgia (49%) and Ohio (47%) – but anti-abortion sentiment in these states is still higher than the national average (39%).

So if that’s the case, then what’s wrong with leaving abortion up to state legislatures if they are simply reflecting the will of their voters?  What’s wrong is that states—both red and blue --have (and continue to) gerrymandered their legislative districts to consolidate power.  That presents a clear risk that gerrymandered state legislatures may not reflect the will of a majority of their voters.

Where does all this leave the woman who needs an abortion and those who would deny her one? As every woman knows, there will always be unwanted, unexpected, or forced pregnancies, which means there will always be a need for abortion.  And given that abortion has entered the pantheon of partisan political issues, there will always be people who will try to prevent them.  If Roe is overturned, will American women of childbearing age who happen to live in one of the 26 states, and perhaps more to follow, which have banned abortion be forced to bear children they do not want at that time in their lives?  Are these women at risk of becoming Handmaids?  We needn't travel to a fictional Gilead to answer that question; we need only consider Poland.

 As reported in The Guardian:

Poland is planning to introduce a centralised register of pregnancies that would oblige doctors to report all pregnancies and miscarriages to the government. The proposed register would come into effect in January 2022, a year after Poland introduced a near-total ban on abortion.

The concerns of activists about the register grew considerably after a bill proposed by the government that would establish an “institute of family and demographics” passed first reading in the Polish parliament by one vote on Thursday.

The institute would aim to monitor family policy, pass opinion on legislation and educate citizens on the “vital role of family to the social order” and the importance of “cultural-social reproduction” in the context of marriage. The institute would have access to citizens’ personal data and prosecutorial powers in the realm of family law, prompting worries it could be used to enforce the country’s strict abortion law.

The plan prompted online protests. A social media initiative titled “I’d like to politely report that I am not pregnant” encouraged Polish women to email photos of their used sanitary pads, tampons and underwear to the Polish ministry of health.

Those Polish protests may be humorous, gutsy, and irreverent, but the law is no joke.  Returning closer to home, if there is no U. S. constitutional right to an abortion, then what limitations, if any, are imposed on a state legislature that enacts an abortion law? Could a state that criminalizes abortion require that a woman of childbearing age be stopped at the state line and be subjected to a pregnancy test?  And if she tests pregnant, could her travel to a state that allows abortion be restricted?  Could her doctor or the border control be required to enter her pregnancy in a state registry and if she miscarries, to register that too? 

Should Roe become a legal footnote next summer, our typical American woman who seeks an abortion, our “earthen vessel,” as Madison Cawthorn (R-NC, above) calls her, could end up being “Roe-d” all the way to Poland---metaphorically speaking. And she would be a vessel with no quality of life preservers on board. 

Keep it real!  And wear your damn mask!

Marilyn