 | | Illustration by The New York Times; photographs by Sandy Huffaker, via Getty Images |
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When the conservative majority of the Supreme Court revoked the constitutional right to abortion last month, they knew full well that they were bringing a five-decade-long period of the nation's history to a close. But what would come after? How exactly American politics and society would respond to Roe v. Wade's overturning, the court's opinion read, "We do not pretend to know." |
Americans are now beginning to find out. At least nine states have already outlawed abortion, and many more are expected to follow in the coming weeks. And as Republican-controlled legislatures explore ways of criminalizing out-of-state abortions, Democrat-led states have responded with legislation and executive orders designed to protect patients and providers against legal threats from outside their borders, creating, in the words of a new Columbia Law Review article, a "novel world of complicated, interjurisdictional legal conflicts." |
How might supporters and opponents of abortion rights navigate this new legal and political terrain that the Supreme Court created? Here's what people are saying. |
'The end of the beginning' for the anti-abortion movement |
Many abortion opponents who believe that an embryo or a fetus is a human life, and that abortion therefore constitutes a destruction of that life, are not content to leave the legality of the procedure up to the states. In the Catholic journal First Things, the political scientist Hadley Arkes calls Roe's overturning only a "first step," albeit a "resounding" one analogous to Abraham Lincoln's Emancipation Proclamation, which freed enslaved people in the Confederacy but not in the Union's slaveholding border states. "It is a good thing that this first step has been taken," he writes, but "this is the end of the beginning, and now the work begins anew." |
A central goal of that work may be a federal ban on abortion, whether at 15 weeks of pregnancy, 12 weeks or in all cases. Senator Mitch McConnell, the minority leader, has tiptoed around the idea, calling it "possible" if his party gained control of Congress. Other lawmakers and high-profile figures in his party have displayed more enthusiasm. |
"Now that Roe v. Wade has been consigned to the ash heap of history, a new arena in the cause of life has emerged," former Vice President Mike Pence said last month. "Having been given this second chance for life, we must not rest and must not relent until the sanctity of life is restored to the center of American law in every state in the land." |
But abortion bans on their own will not eradicate abortion, Erika Bachiochi, a conservative legal scholar, writes in The Times. Especially given the availability of medication abortion, Bachiochi argues that abortion opponents must also work to reduce the demand for the procedure by changing the conditions that make pregnancy and parenthood so arduous (and dangerous) in the United States: "Without robust societal support of pregnant women and child-rearing families, too many women will be left to regard their unborn children as trespassers on their already taxed lives rather than unbidden gifts that open new horizons to them. These women need society's utmost assistance — not abortion, or scorn." |
What might such assistance look like? In The Atlantic, Elizabeth Bruenig argues that abortion opponents should work to make pregnancy, childbirth and postpartum care free as a matter of national policy. "The federal government could — without much structural innovation — eliminate these costs altogether, and with them lethal barriers to maternal and infant care," she writes. "Medicare already covers the costs of pregnancy and childbirth for people who are eligible for the program due to disability. This coverage could be extended to everyone, regardless of disability status, age, income, or work history — and such an expansion should be feasible, at least administratively." |
But as Bruenig notes, realizing such a vision would require the pro-life movement to move beyond its narrow fixation on criminalizing abortion. How likely is such a shift? In the view of the Times columnist Ross Douthat, "there is a constituency within the Republican Party that is pro-life, socially conservative, and economically moderate and open to spending more money." In theory, Douthat said on last week's episode of the podcast "The Argument," "the end of Roe gives that faction more leverage because, for the first time, they can credibly say, we might go vote for Democrats now if you aren't willing to be more capaciously pro-life." |
His interlocutor, the Times columnist Michelle Goldberg, was dubious: After all, the Republican senator Mitt Romney proposed family-oriented legislation last year that would have given direct aid to parents, but that policy scheme has met opposition from other members of his party. "My bet — and we'll find this out — is that rather than a right-wing turn toward a more robust welfare state or kind of more communitarian policymaking, we are going to see even more punitive policies," Goldberg said. "We're going to see a focus on who can be criminalized. We're going to see more investigations of miscarriages. We're going to see doctors in jail." |
The road ahead for abortion rights |
In the short term, one of the most salutary steps abortion-supportive states can take is to pass laws that protect providers and seekers of abortions, David S. Cohen, Greer Donley and Rachel Rebouché argue in The Times. All states, they note, have laws that require their courts to assist in other states' depositions, subpoenas and legal processes. Abortion-supportive states could amend those laws to prohibit cooperation with out-of-state investigations into abortions that are legal within their borders and with efforts to extradite those who perform them. Similarly, abortion-supportive states could instruct their medical boards and malpractice insurance companies not to participate in actions against out-of-state abortion providers that would threaten their medical licenses or insurance status. |
"There is no doubt that these actions could threaten basic principles of cooperation and comity that are required for a country of 50 states to function as a united whole," they write. "But these principles already have been frayed by anti-abortion states like Missouri attempting to legislate outside their borders." |
In the national electoral arena, Democrats should campaign by appealing to voters' credible fears of a national abortion ban, Ana Marie Cox argues in The Times, as well as by pledging to take specific actions to protect abortion access. "I am honestly unsure if it matters what those action items are; I do know Democrats will have to throw out any concern for the appearance of moderation," she writes. "Right now, all the ideas about bridging the gap to abortion access sound extreme," but, she adds, "so did overturning Roe v. Wade." |
Some prominent supporters of abortion rights have stressed that voting alone is a necessary but insufficient response to the moment. "We need to fill the streets," Representative Alexandria Ocasio-Cortez said at a rally in front of the Supreme Court last month. "We need sand in every damn gear." |
My colleague Jay Caspian Kang agrees. He calls for a day of nationwide rallies for abortion rights, sponsored and organized by Democratic Party leadership. "If Democratic leadership wants to reap the political rewards on an issue that almost nine out of 10 Democrats largely agree upon," he writes, "they should stop punching left and make sure they are in a position to deserve the political rewards of what promises to be another summer of protest." |
In the months and years to come, abortion-rights supporters will also have to reflect on their tactical mistakes that made this moment possible, argues Mary Ziegler, a legal historian, in The Times. "They failed to mobilize voters to care about control of the courts in the ways that conservatives did over the past half-century.," she writes. "The abortion-rights movement often neglected the ideas and needs of people of color, and they often treated Roe as a stand-alone issue — one that could be separated from fights about racism or voting rights or birth control — in ways that set their movement up for failure." |
At the same time, Jia Tolentino believes that abortion-rights proponents will need to abandon the squeamishness and euphemism that have characterized mainstream pro-choice rhetoric. (It took Biden more than a year in office, she notes, to even say the word "abortion.") |
"That approach has landed us here," she writes in The New Yorker. "We are not going back to the pre-Roe era, and we should not want to go back to the era that succeeded it, which was less bitter than the present but was never good enough. We should demand more, and we will have to. We will need to be full-throated and unconditional about abortion as a necessary precondition to justice and equal rights if we want even a chance of someday getting somewhere better." |
Do you have a point of view we missed? Email us at debatable@nytimes.com. Please note your name, age and location in your response, which may be included in the next newsletter. |
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