Skip to main content

Life After Roe is All Question Marks

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.

 

Comments

  1. And as a former employee of Planned Parenthood, here's another addition to the misery: Women who get the abortion medication through telehealth or by the internet through legal states and then have a problem that requires medical attention in their illegal state. How will that be handled? All related questions. It does happen that there is an incomplete abortion with the pills that can be catastrophic in rare cases. How will medical providers in those red states handle these consequences? Too many questions and to many REALLY short sighted crazies in positions of power. The next question is what happens to these children who are forced into a world where they can't be cared for properly and the costs to society with that. Our children are already stressed to the max in this insane world we have created. It's all just too damn much!

    ReplyDelete
    Replies
    1. You would know better than I, but aren't doctors required to treat medical emergencies, regardless of origin? They don't have to personally approve of gang violence to treat gunshot wounds, right? Of course, in red states guns take priority over women, so maybe my reasoning is specious.

      Delete
    2. I think you are correct. I think the abortifacients are going to be the answer (e.g., methotrexate/misoprostol combination regimen) and I imagine doctors will not let women with complications die and I imagine the courts will not punish doctors for helping in such cases.

      Delete
  2. I've often thought it's an exercise in futility. They want to save all fetuses only to let them be shot later in life by their damned guns. Also, I'm not so sure that Hippocratic oath holds much water anymore, but like Andy, I'm no expert.

    ReplyDelete

Post a Comment

Popular posts from this blog

The Trouble with Old White Guys

  In the spirit of the holidays, I’m re-gifting a piece I wrote in late November of the blighted year 2020. Post-election, pre-vaccine, it has nothing to do with the holidays, or even with good spirits. Nor is it especially topical. I’m recycling it mostly because I still like it. It still feels more-or-less true. It isn’t too dated. And I know some of my newer readers haven’t read it. For those of you who have — you know who you are — I invite you to take a second look. No pressure. I had a zoom call the other day with an old friend I’d neither seen nor communicated with in about five years. We schmoozed and caught up and trashed Republicans and shared our amazement over this whole pandemic thing, and then he said something I had to think about: “It’s not a bad time to be old.” Hmm. To be sure, it’s a great time to not struggle in the job market. It’s an excellent time to not worry where your next meal is coming from. It’s a sensational time to not be raising

What’s it Like Out on That Limb, Liz?

Let me start by saying that Liz Cheney is not my favorite person. Heir to Dick Cheney, one of the foulest public figures of the last century, she was born on the wrong side of every issue. Only rarely has she strayed from the toxic values of her father. She voted with Trump 93 percent of the time. Including the $2 trillion tax boondoggle of 2017, which no doubt added a few million to her own estate, and several multiples of that to her daddy’s. That said, one can’t help but begrudgingly look on, with some tiny bit of admiration, at the limb she has intentionally — and with eyes wide open —slithered out on. Unlike the Democrats on the Jan 6 committee — who are only trying to save democracy — Cheney has arguably a more difficult job. She seems to have taken it upon herself to be the one to take down Donald Trump. Or barring that, to exorcise him from the Republican party. Both are tall orders, and to make them happen, she has to work closely with Democrats, whom she despises. And

Consumer Power and the Promise of Negative Branding

By now it’s pretty clear that Republicans are out to steal your lunch money. If they take back the House, it will be two years of committee hearings for Hunter Biden and two more years of festering stasis for the rest of us. So we need ideas, fast. I am one of many who believe at least part of the answer lies in the business world. Corporate America needs to step up. Large corporations have significant financial leverage over Republicans at every level — federal, state, local — and we need them to use that leverage to get us out of this mess, not just for our sakes, but for their own as well. It is inexcusable that hundreds of mega-companies continue to contribute to the campaigns of Republican congressmen who openly denied the 2020 election results. These companies continue, in other words, to finance treason. This is appalling on any number of levels, but let’s start with whether they’re getting their money’s worth. The Republican agenda they underwrite is so corrupt, so co