Laura Kneedler / Shutterstock.com
Laura Kneedler / Shutterstock.com
‘Roe’ Will Likely Be Overturned. So Why Is the GOP Doubling Down?
Why abort abortion—the Republicans' most galvanizing issue—when you can instead play whack-a-mole with reproduction rights?
This article was made possible because of the generous support of DAME members. During our Spring Member Drive, we urgently need your help to keep publishing. Will you contribute just $5 a month to support our journalism?
With four solid votes to overturn Roe v. Wade currently perched on the Supreme Court bench, and the fate of abortion rights placed right into Chief Justice John “Roe was wrongly decided and should be overturned” Roberts’s hands, it isn’t alarmist at all to point out that abortion will remain legal in all 50 states for another two to three years, tops. You would think that victory would alone be good enough for the far right, who spent decades demanding that each state be allowed to decide for itself whether abortion should be legal. Despite the fact that they are closer to their goal than at any point in the last 40 years, abortion opponents are doubling down on their efforts to layer restriction after restriction to make abortion completely impossible to obtain even if states choose to keep the protections of Roe intact in their own borders.
The flood of new “trigger” laws—bills that will make abortion completely illegal either as soon as the Supreme Court overturns Roe or when state legislators can meet for a follow-up vote—are officially verifying what we already assumed: Most of the South, a chunk of the Midwest and an alarming portion of the mid-Atlantic will be without any legal abortion and will make terminating a pregnancy a crime. Kentucky, South Carolina, Tennessee, Missouri, Arkansas, and Georgia have either passed or are in the process of passing trigger bills, joining Louisiana, Mississippi, North Dakota, and South Dakota who already have them on the books. While some states like Texas, Oklahoma, and Ohio seem likely to follow in those footsteps soon, the simple truth is that with “heartbeat” bans being proposed that ban abortion at between five and six weeks gestation working their way to their governors’ desks, these states really don’t need an actual law to make abortion completely illegal—they’ve already perfected a scenario in which it will be basically impossible for a provider to terminate a pregnancy at all.
Our “post-Roe” landscape is potentially alarming one, with abortion access limited almost entirely to the West Coast, Colorado, New Mexico, Minnesota, Illinois, the East Coast and Virginia. Whether or not Kansas, Iowa, or Florida have any legal care could be completely dependent on who is in charge of the legislature at any given moment. But leaving vast swatches of the country an abortion-access desert isn’t good enough for the right. They’ve come up with even more ingenious ways to winnow those last bits of legal abortion care.
As the so-called “pro-life” movement blasts the airwaves, swamps the newspaper editorials, and harasses politicians over their alleged support of “infanticide,” the religious Right has become alarmingly successful at convincing everyday Americans that Roe allows the murder of newborn babies. They’ve brainwashed their followers into believing a law that declares only that states cannot ban abortion prior to viability and cannot ban abortion at all if a pregnant person’s life is at risk is actually an open opportunity for women in cahoots with their doctors to choose to go into labor and then murder a completely full term and viable baby, and that passing abortion restrictions that limit abortion to the first trimester (or earlier) is the only way to stop this slaughter—despite the fact that the very laws they claim support infanticide have already been in place for almost five decades.
“It’s clear that the Left is worried about the overturning of Roe v. Wade. When Roe is overturned, abortion policy goes back to the states,” Penny Yance of Concerned Women of America told The Stream during a CPAC interview this weekend. “The laws they’re working on ensure that the most liberal states will allow abortion at any point, which is basically in line with Roe and Doe v. Bolton. So nothing would change if you are in New York or some of these other states.”
Because sending abortion back to the states to decide isn’t enough for the religious right—not even if a vast majority of those states do agree to criminalize the procedure altogether. Instead, they have back up plans for their back up plans, because they’ve been preparing for this moment ever since Roe was decided in the first place.
Let’s be clear: The Right is never going to be able to pass a full federal abortion ban across the entire United States of America. The GOP needs abortion to exist in some form as a boogeyman in the U.S., an easy means to consolidate their wayward voting bloc and keep them consistently casting their ballots in a way that degrading immigrants and people of color, or claiming to cut taxes will simply never accomplish. Because of this, there will always be some states allowing abortion in some form, even if the majority of the country decides to make it a crime.
But once Roe is gone completely, abortion opponents will focus even harder on federal restrictions, hoping to use them to overrule the new protections that pro-abortion rights states are working so hard to implement. And, just as they did when they started aggressively pushing to overturn Roe in 2010, they will go back to doing it incrementally.
The blueprint may look a little different this time around, but it will take the same path as before. In 2010, abortion opponents pushed for so-called “fetal pain” bills across the nation. The goal was simple—get states to ban abortion at around 20 weeks under the guise that a fetus can feel pain by that point (a statement still rejected by most medical professionals who aren’t shilling for the pro-life movement), then once the Supreme Court agrees that “fetal pain” could be used as a new threshold for abortion limits rather than viability, start offering new studies claiming “pain” could be felt at 14 weeks, 12 weeks, perhaps even as early as six weeks gestation. It would have been the legal equivalent of setting the hook once the fish starts to nibble, except that SCOTUS never actually bothered to take the bait.
Now anti-abortion activists obviously launching a new focus to winnow down gestational limits on a federal level by using their already launched war on later abortions. They hope to use D&E bans as a way to “limit” abortion after the first trimester, then layer on increasing restrictions to close off any loopholes or exceptions in order to completely eliminate abortion at any point after 12 to 14 weeks.
D&E (Dilation and Evacuation) bans aren’t new at all, although no state that has passed it has made it past a court challenge and actually put the ban into effect. At this point 20 state attorneys general and one governor have banded together to beg the Supreme Court to hear out an Alabama challenge to a federal court injunction, desperately hoping that they can get a ruling saying D&E is a procedural method, not a full ban, and that doctors can simply do a second or third trimester abortion a different way instead.
Unsurprisingly, however, those “different” ways put both pregnant patients and doctors more at risk. Doctors can assure fetal demise by giving a fetus a digoxin injection into the heart to ensure the D&E is only done on a fetus that isn’t living. Or a provider could do a labor induction rather than a D&E. Of course, an induction takes far longer and puts the pregnant person at more medical risk, and the injection does the same, without providing any actual medical benefit in the process, but at least there would be options for getting around the law, right?
Except there wouldn’t be, if abortion opponents have their way. It is for exactly that reason that when they write “20-week” abortion bans, the very limited exceptions allowed for cases of sexual assault require that a provider do an abortion “in a way most likely to provide a live birth.” In other words, they are demanding a labor induction of a live fetus, and then, if they had their way with the “Abortion Survivor Protection Act” that fetus would then have to be resuscitated and kept medically provided for or the doctor and patient would be accused of murder.
As if that weren’t already restrictive enough, abortion opponents are signaling their new plan to ban the use of drugs that cause fetal demise, too, eliminating another work-around for providers to continue offering abortion care. Dubbing the process of causing fetal demise via injection a “heart attack abortion” and claiming it causes fetuses to “suffer horribly,” Students for Life President Kristin Hawins argues in the Washington Examiner that “ increasingly viable infants endure chemically induced trauma to be expelled, dead, after induced delivery in two to four days. Congress should also act to prevent these deadly heart-attack abortions now, especially as a national debate is taking place about late-term abortion.”
A ban on an abortion procedure that allegedly “tears a child limb from limb” as the right claims doesn’t sound that unreasonable to a number of Americans who have no idea how difficult abortion is to obtain, how overblown the right’s rhetoric is, or how easily they are being manipulated by their talking points. And those are the exact words that they will hear over and over again in the court and in the media when the Supreme Court does eventually take up the law, since I guarantee that will be the case they use when they decide to finally overturn Roe. But once abortion is sent back to the states, you can be certain that a federal D&E ban will be introduced the next time Congress is completely under Republican control—and especially if they manage to get the White House in their hands, too. That will be the moment when it call comes together at once.
It will be illegal to perform an abortion on a live fetus after 14 weeks. And illegal to give it an injection to ensure its demise. And illegal to induce and have a live birth without providing medical care, even if it is too premature to even conceivably survive. And as each rule layers on the last, it will be completely illegal to have any abortion after the first trimester at all.
I spend a lot of time these days preparing what the United States is going to look like after Roe v. Wade is overturned, because I know that it is just around the corner. I think about how to keep what access we will have, and hope to expand abortion access (legally and, well, otherwise) into places where it will be most needed. But the thing I spend the most time trying to wrap my head around is the fact that Roe being overturned really won’t be the end of anything for abortion opponents.
The worst part of it all is that it really is the point where they are just finally getting started.
Before you go, we hope you’ll consider supporting DAME’s journalism.
Today, just tiny number of corporations and billionaire owners are in control the news we watch and read. That influence shapes our culture and our understanding of the world. But at DAME, we serve as a counterbalance by doing things differently. We’re reader funded, which means our only agenda is to serve our readers. No both sides, no false equivalencies, no billionaire interests. Just our mission to publish the information and reporting that help you navigate the most complex issues we face.
But to keep publishing, stay independent and paywall free for all, we urgently need more support. During our Spring Membership drive, we hope you’ll join the community helping to build a more equitable media landscape with a monthly membership of just $5.00 per month or one-time gift in any amount.