Time Before Roe. Somewhere Worse by Jia Tolentina (Kyrgyzstan)

Thanks for the ‘heads up’ from Bill Preston (Thailand 1977-80)

We’re Not Going Back to the Time Before Roe. We’re Going Somewhere Worse

We are entering an era not just of unsafe abortions but of the widespread criminalization of pregnancy.

By Jia Tolentina (Kyrgyzstan 2009)
The New Yorker
June 24, 2022

Illustration by Chloe Cushman

In the weeks since a draft of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization—a case about a Mississippi law that bans abortion after fifteen weeks, with some health-related exceptions but none for rape or incest—was leaked, a slogan has been revived: “We won’t go back.” It has been chanted at marches, defiantly but also somewhat awkwardly, given that this is plainly an era of repression and regression, in which abortion rights are not the only rights disappearing. Now that the Supreme Court has issued its final decision, overturning Roe v. Wade and removing the constitutional right to abortion, insuring that abortion will become illegal or highly restricted in twenty states, the slogan sounds almost divorced from reality—an indication, perhaps, of how difficult it has become to comprehend the power and the right-wing extremism of the current Supreme Court.

Support for abortion has never been higher, with more than two-thirds of Americans in favor of retaining Roe, and fifty-seven per cent affirming a woman’s right to abortion for any reason. Even so, there are Republican officials who have made it clear that they will attempt to pass a federal ban on abortion if and when they control both chambers of Congress and the Presidency. Anyone who can get pregnant must now face the reality that half of the country is in the hands of legislators who believe that your personhood and autonomy are conditional—who believe that, if you are impregnated by another person, under any circumstance, you have a legal and moral duty to undergo pregnancy, delivery, and, in all likelihood, two decades or more of caregiving, no matter the permanent and potentially devastating consequences for your body, your heart, your mind, your family, your ability to put food on the table, your plans, your aspirations, your life.

Abortion Access After Roe

“We won’t go back”—it’s an inadequate rallying cry, prompted only by events that belie its message. But it is true in at least one sense. The future that we now inhabit will not resemble the past before Roe, when women sought out illegal abortions and not infrequently found death. The principal danger now lies elsewhere, and arguably reaches further. We have entered an era not of unsafe abortion but of widespread state surveillance and criminalization—of pregnant women, certainly, but also of doctors and pharmacists and clinic staffers and volunteers and friends and family members, of anyone who comes into meaningful contact with a pregnancy that does not end in a healthy birth. Those who argue that this decision won’t actually change things much—an instinct you’ll find on both sides of the political divide—are blind to the ways in which state-level anti-abortion crusades have already turned pregnancy into punishment, and the ways in which the situation is poised to become much worse.

In the states where abortion has been or will soon be banned, any pregnancy loss past an early cutoff can now potentially be investigated as a crime. Search histories, browsing histories, text messages, location data, payment data, information from period-tracking apps—prosecutors can examine all of it if they believe that the loss of a pregnancy may have been deliberate. Even if prosecutors fail to prove that an abortion took place, those who are investigated will be punished by the process, liable for whatever might be found.

Five years ago, Latice Fisher, a Black mother of three from Mississippi, who made eleven dollars an hour as a police-radio operator, experienced a stillbirth, at roughly thirty-six weeks, at home. When questioned, she acknowledged that she didn’t want more kids and couldn’t afford to take care of more kids. She surrendered her phone to investigators, who scraped it for search data and found search terms regarding mifepristone and misoprostol, i.e., abortion pills.

These pills are among the reasons that we are not going back to the era of coat hangers. They can be prescribed via telemedicine and delivered via mail; allowing for the prescription of an extra dose, they are ninety-five to ninety-eight per cent effective in cases of pregnancy up to eleven weeks, which account for almost ninety per cent of all abortions in the U.S. Already, more than half of all abortions in the country are medication abortions. In nineteen states, doctors are prohibited from providing abortions via telemedicine, but women can seek help from clinicians in other states and abroad, such as Rebecca Gomperts, who leads Aid Access, an organization based in Austria that is openly providing abortion pills to women in prohibition states, and has been safely mailing abortion pills to pregnant people all over the world since 2005, with the organization Women on Web. In advance of the U.S. bans, Gomperts has been promoting advance prescription: sympathetic doctors might prescribe abortion pills for any menstruating person, removing some of the fears—and, possibly, the traceability—that would come with attempting to get the pills after pregnancy. Misoprostol can be prescribed for other issues, such as stomach ulcers, and Gomperts argues that there is no reasonable medical argument against advance prescription. “If you buy bleach in the supermarket, that’s more dangerous,” she has said.

There was no evidence that Latice Fisher took an abortion pill. She maintained that she had experienced a stillbirth—an occurrence in one out of every hundred and sixty pregnancies in the U.S. Nonetheless, she was charged with second-degree murder and held for several weeks on a hundred-thousand-dollar bond. The district attorney, Scott Colom, had campaigned as a progressive reformer; advocates pushed him to drop the murder charge, and to provide a new grand jury with information about an antiquated, unreliable “float test” that had been used as a basis for the allegation that Fisher’s baby was born alive. The grand jury declined to indict Fisher again; the ordeal took more than three years.

Even if it remains possible in prohibition states to order abortion pills, doing so will be unlawful. (Missouri recently proposed classifying the delivery or shipment of these pills as drug trafficking. Louisiana just passed a law that makes mailing abortion pills to a resident of the state a criminal offense, punishable by six months’ imprisonment.) In many states, to avoid breaking the law, a woman would have to drive to a state where abortion is legal, have a telemedicine consultation there, and then receive the pills in that state. Many women in Texas have opted for a riskier but easier option: to drive across the border, to Mexico, and get abortion pills from unregulated pharmacies, where pharmacists may issue incorrect advice for usage. Some women who lack the freedom and money to travel out of state, and who might fear the consequences of seeking a clinical confirmation of their gestational stage, will order abortion pills without a clear understanding of how far along they are in pregnancy. Abortion pills are safe and effective, but patients need access to clinical guidance and follow-up care. Women in prohibition states who want to seek medical attention after a self-managed abortion will, as a rule, have to choose between risking their freedom and risking their health.

Both abortion and miscarriage currently occur more than a million times each year in America, and the two events are often clinically indistinguishable. Because of this, prohibition states will have a profoundly invasive interest in differentiating between them. Some have already laid the groundwork for establishing government databases of pregnant women likely to seek abortions. Last year, Arkansas passed a law called the Every Mom Matters Act, which requires women considering abortion to call a state hotline and requires abortion providers to register all patients in a database with a unique I.D. Since then, six other states have implemented or proposed similar laws. The hotlines are provided by crisis pregnancy centers: typically Christian organizations, many of which masquerade as abortion clinics, provide no health care, and passionately counsel women against abortion. Crisis pregnancy centers are already three times as numerous as abortion clinics in the U.S., and, unlike hospitals, they are not required to protect the privacy of those who come to them. For years, conservative states have been redirecting money, often from funds earmarked for poor women and children, toward these organizations. The data that crisis pregnancy centers are capable of collecting—names, locations, family details, sexual and medical histories, non-diagnostic ultrasound images—can now be deployed against those who seek their help.

If you become pregnant, your phone generally knows before many of your friends do. The entire Internet economy is built on meticulous user tracking of purchases and search terms. Laws modelled on Texas’s S.B. 8, which encourages private citizens to file lawsuits against anyone who facilitates an abortion, will proliferate, giving self-appointed vigilantes no shortage of tools to track and identify suspects. (The National Right to Life Committee recently published policy recommendations for anti-abortion states that included criminal penalties for anyone who provides information about self-managed abortion “over the telephone, the internet, or any other medium of communication.”) A reporter for Vice recently spent a mere hundred and sixty dollars to purchase a data set on visits to more than six hundred Planned Parenthood clinics. Brokers sell data that make it possible to track journeys to and from any location—say, an abortion clinic in another state. In Missouri, this year, a lawmaker proposed a measure that would allow private citizens to sue anyone who helps a resident of the state get an abortion elsewhere; as with S.B. 8, the law would reward successful plaintiffs with ten thousand dollars. The closest analogue to this kind of legislation is the Fugitive Slave Act of 1793.

For now, the targets of S.B. 8-type bounty laws are those who provide abortions, not those who seek them. But that seems likely to change. Connecticut, a progressive state on the matter of abortion, recently passed a law that prevents local agencies from coöperating with out-of-state abortion prosecutions and protects the medical records of out-of-state clients. Other progressive states will follow suit. If prohibition states can’t sue out-of-state doctors, and, if abortion pills sent by mail remain largely undetectable, the only people left to target will be abortion advocates and those trying to get abortions. The Stream, a conservative Christian publication, recently advocated mandatory psychiatric custody for women who get abortions. In May, Louisiana advanced a bill that would allow abortion patients to be charged with murder. The proposal was withdrawn, but the threat had been made.

The theological concept of fetal personhood—the idea that, from the moment of conception, an embryo or fetus is a full human being, deserving of equal (or, more accurately, superior) rights—is a foundational doctrine of the anti-abortion movement. The legal ramifications of this idea—including the possible classification of I.V.F., IUDs, and the morning-after pill as instruments of murder—are unhinged, and much harsher than what even the average anti-abortion American is currently willing to embrace. Nonetheless, the anti-abortion movement is now openly pushing for fetal personhood to become the foundation of U.S. abortion law.

If a fetus is a person, then a legal framework can be invented to require someone who has one living inside her to do everything in her power to protect it, including—as happened to Savita Halappanavar, in Ireland, which operated under a fetal-personhood doctrine until 2018, and to Izabela Sajbor, in Poland, where all abortion is effectively illegal—to die. No other such obligation exists anywhere in our society, which grants cops the freedom to stand by as children are murdered behind an unlocked door. In Poland, pregnant women with cancer have been routinely denied chemotherapy because of clinicians’ fears of harming the fetus.

Fetal-personhood laws have passed in Georgia and Alabama, and they are no longer likely to be found unconstitutional. Such laws justify a full-scale criminalization of pregnancy, whereby women can be arrested, detained, and otherwise placed under state intervention for taking actions perceived to be potentially harmful to a fetus. This approach has been steadily tested, on low-income minorities in particular, for the past four decades. National Advocates for Pregnant Women—the organization that has provided legal defense for most of the cases mentioned in this article—has documented almost eighteen hundred cases, from 1973 to 2020, of prosecutions or forced interventions related to pregnancy; this is likely a substantial undercount. Even in states such as California, where the law explicitly prohibits charging women with murder after a pregnancy loss, conservative prosecutors are doing so anyway.

Most pregnancy-related prosecutions, so far, have revolved around drug use. Women who used drugs while pregnant, or sought treatment for drug use during pregnancy, have been charged with child abuse, child neglect, distribution of drugs to a minor, assault with a deadly weapon, manslaughter, and homicide. In 2020, law enforcement in Alabama investigated a woman named Kim Blalock for chemical endangerment of a child after she told delivery-room staff that she had been taking prescribed hydrocodone for pain management. (The district attorney charged her with prescription fraud—a felony—before eventually dropping the prosecution altogether.) There has been a string of shocking recent prosecutions in Oklahoma, in which women who used drugs have been charged with manslaughter for miscarrying well before the point of viability. In Wisconsin, state law already allows juvenile courts to take a fetus—meaning a pregnant woman—into custody for the fetus’s protection, resulting in the detention and forced treatment of more than four hundred pregnant women every year on the suspicion that they may be consuming controlled substances. A proposed law in Wyoming would create a specific category of felony child endangerment for drug use while pregnant, a law that resembles Tennessee’s former Fetal Assault Law. The Tennessee law was discontinued after two years, because treating women as adversaries to the fetuses they carry has a chilling effect on prenatal medicine, and inevitably results in an increase in maternal and infant death.

The mainstream pro-choice movement has largely ignored the growing criminalization of pregnancy, just as it has generally ignored the inadequacy of Roe. (It took Joe Biden, who campaigned on making Roe the “law of the land,” more than a year to say the word “abortion” on the record after he became President; the Democrats, given the chance to override the filibuster and codify Roe in May, predictably failed to do so.) Many of those who support the right to abortion have tacitly accepted that poor and minority women in conservative states lost access to abortion long before this Supreme Court decision, and have quietly hoped that the thousands of women facing arrest after pregnancy, miscarriage, stillbirth, or even healthy deliveries were unfortunate outliers. They were not outliers, and, as the columnist Rebecca Traister noted last month, the chasm between the impervious class and everyone else is growing every day.

Pregnancy is more than thirty times more dangerous than abortion. One study estimates that a nationwide ban would lead to a twenty-one-per-cent rise in pregnancy-related deaths. Some of the women who will die from abortion bans are pregnant right now. Their deaths will come not from back-alley procedures but from a silent denial of care: interventions delayed, desires disregarded. They will die of infections, of preëclampsia, of hemorrhage, as they are forced to submit their bodies to pregnancies that they never wanted to carry, and it will not be hard for the anti-abortion movement to accept these deaths as a tragic, even noble, consequence of womanhood itself.

In the meantime, abortion bans will hurt, disable, and endanger many people who want to carry their pregnancies to term but who encounter medical difficulties. Physicians in prohibition states have already begun declining to treat women who are in the midst of miscarriages, for fear that the treatment could be classified as abortion. One woman in Texas was told that she had to drive fifteen hours to New Mexico to have her ectopic pregnancy—which is nonviable, by definition, and always dangerous to the mother—removed. Misoprostol, one of the abortion pills, is routinely prescribed for miscarriage management, because it causes the uterus to expel any remaining tissue. Pharmacists in Texas, fearing legal liability, have already refused to prescribe it. If a miscarriage is not managed to a safe completion, women risk—among other things, and taking the emotional damage for granted—uterine perforation, organ failure, infection, infertility, and death.

Most miscarriages are caused by factors beyond a pregnant person’s control: illnesses, placental or uterine irregularities, genetic abnormalities. But the treatment of pregnant people in this country already makes many of them feel directly and solely responsible for the survival of their fetus. They are told to absolutely avoid alcohol, coffee, retinol, deli turkey, unpasteurized cheese, hot baths, vigorous exercise, drugs that are not prescribed to them, drugs that they have been prescribed for years—often without any explanation of the frequently shoddy reasoning behind these prohibitions. Structural factors that clearly increase the likelihood of miscarriage—poverty, environmental-chemical exposure, working night shifts—are less likely to come up. As fetal personhood becomes law in more of the land, pregnant people, as Lynn Paltrow, the director of National Advocates for Pregnant Women, has pointed out, “could be sued, or prevented from engaging in travel, work, or any activity that is believed to create a risk to the life of the unborn.”

Half a century ago, the anti-abortion movement was dominated by progressive, antiwar, pro-welfare Catholics. Today, the movement is conservative, evangelical, and absolutely single-minded, populated overwhelmingly by people who, although they may embrace foster care, adoption, and various forms of private ministry, show no interest in pushing for public, structural support for human life once it’s left the womb. The scholar Mary Ziegler recently noted that today’s anti-abortion advocates see the “strategies of earlier decades as apologetic, cowardly, and counterproductive.” During the past four years, eleven states have passed abortion bans that contain no exceptions for rape or incest, a previously unthinkable extreme.

In Texas, already, children aged nine, ten, and eleven, who don’t yet understand what sex and abuse are, face forced pregnancy and childbirth after being raped. Women sitting in emergency rooms in the midst of miscarriages are being denied treatment for sepsis because their fetuses’ hearts haven’t yet stopped. People you’ll never hear of will spend the rest of their lives trying and failing, agonizingly, in this punitive country, to provide stability for a first or fifth child they knew they weren’t equipped to care for.

In the face of all this, there has been so much squeamishness, even in the pro-choice camp: a tone that casts abortion as an unfortunate necessity; an approach to messaging which values choice but devalues abortion care itself, which emphasizes reproductive rights rather than reproductive justice. That approach has landed us here. 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.

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Jia Tolentino (Kyrgyzstan 2009) is a staff writer at The New Yorker. She is the author of the essay collection Trick Mirror. This essay will be in the July 4, 2022 issue, with the headline “The Post-Roe Era.”