We now must assume that Roe v. Wade is a goner. It will go down as a massive casualty of a heinous abuse of power, and far from the last such abuse we’ll see in the near future.
I don’t see anything standing in the way of a complete overturning, legal precedent be damned. Yes, it’s absurd. Yes, it’s about power for power’s sake. Yes, three quarters of the country is already enraged at such barbarity — though it’s not clear if that matters.
But what will a world without Roe actually look like? Beyond the arcane discussions of trimesters and fetal viability, beyond the lurid imagery of handmaids’ tales and rusty coat hangers, what will this actually mean in practical terms?
Even with all the media and press attention the issue is now commanding, I’ve seen almost nothing that addresses this. So as I’ve done previously (here and here), I’ll feel free to speculate. I might even repeat myself.
Keep in mind that overturning Roe won’t make abortion illegal. That will be up to each individual state.
Red states can be relied on to be as restrictive as they can get away with, and who knows where that benchmark will be?
But blue states will have permissive laws that could grow more permissive over time, and could include various forms of commercial outreach to women in red states. Even now, Illinois is actively encouraging women in backward Missouri to cross the border for any reproductive services they need.
But whatever the states do, ending Roe will not end abortion, not in a million years. Women seek and receive abortions in huge numbers all over the world, regardless of legal impediments. The demand will always be there.
It’s the supply that will have to get more imaginative, and it will. In any state that bans it, abortion will become a black market product, subject to black market economics. And as with most black markets — drugs, weapons, etc. — this new post-Roe world promises to be heaven for entrepreneurs and hell for state administrators.
States that put bans in place will face a wide range of variables. They’ll have to work out systems of law, law enforcement, prosecution, and administration. None are easy or cheap. All come with big question marks.
The first question mark is legal. Will abortion be treated as murder? Since abortion is always premeditated, are we looking at first-degree murder? Will that carry the death penalty? And who will be the actual murderer — the woman who undergoes the abortion or the doctor who performs it? Can they both be murderers?
And that’s just the tip of the legal iceberg. An even bigger issue is who will decide these things. Watch for red state legislatures to spend many millions writing new laws and creating whole new government agencies in the process. These will have to be staffed and paid for with taxpayer money. So much for small government.
Remember, these states are poor, and their Republican legislators aren’t very bright. They have no idea how to anticipate, let alone cope with, the coming deluge of abortion services — legal, semi-legal, and illegal — that will be targeting their populations.
And since a lot of these services will be springing up online — where it’s far easier to skirt, dispute, or even challenge the constitutionality of all kinds of laws — these states will be setting themselves up for chronic legal headaches. They’ll have to hire lots of lawyers, who won’t be very bright either.
The second question mark is enforcement. What mechanisms will be put in place to police illegal abortions? Can the police department make the transition to gynecological crime fighting? If a woman is suspected of having an abortion, how will that be detected? How will it be proven in court? Will we see search warrants issued for wombs?
These are not hypothetical questions — some of the more disturbing answers are in practice right now in Honduras.
The third question mark is administrative. Can the tax base support a new bureaucracy? Can it afford the enforcement, prosecution, and punishment of a new and widespread crime? How will the courts treat this new kind of criminal? Can they handle the added caseload? Can state adoption agencies handle the sudden flood of babies surrendered to the state? And, oh yes, should they raise state taxes to pay for all this?
The fourth question mark is technology. The abortion pill is now a tried-and-true procedure, regularly delivered online via telemedicine applications. Most women, under a doctor’s guidance, can perform the procedure themselves. This virtually guarantees we’ll be seeing innovative ventures aimed at circumventing the laws of the banning states.
These ventures will face no medical barriers at all. The only barriers will be legal, which is exactly how black markets get started. When the financials are attractive enough, the legal risks become just another business cost. And pills are easily concealed.
Not that the legalities will be cut and dried. There will be plenty of gray areas in the law, and those will be exploited by businesses, especially from blue states, and probably from Canada and Mexico as well. It’s no accident that Mexico liberalized its abortion laws the same week Texas went rogue.
It’s also worth noting that black markets inevitably give rise to systemic corruption. We can expect to see a bumper crop of dirty cops, bent judges, and lawmakers who moralize about fetal rights while making big bucks from illegal side hustles — a very Republican thing to do.
So the biggest question mark of all is how far they want to take this. Are they prepared to go to the trouble and expense of creating the kind of draconian institution a true abortion ban will require? Or will they just tolerate — and even profit from — the black market economies that arise in their states?
Republicans have been working toward this moment for half a century, but there’s never been a sense that they’ve thought through the consequences.
And knowing them, I’m guessing they’ll make a hot mess of their own success.