Opinion | ‘You Haven’t Seen Anything Yet’: What’s Next if Roe Goes

There’s a bunch of other states that have, still, their pre-Roe abortion bans on the books, and those could start to be enforced. The estimates I’ve seen are that in somewhere between 24 and 26 states, abortion will be banned. So in blue states, abortion will still be available. Although what’s going to happen is, it’s going to become harder to access, just as a matter of crowding. Every state with functioning clinics is likely to be overrun.

The other thing I think is going to happen is that women who have miscarriages are going to come under a lot of suspicion — maybe not all women, maybe not white middle-class women with private doctors, but a woman who shows up in the hospital having a miscarriage, it’s going to be, “What did you do to cause this?”

And so it’s just going to be a mess, because again, so many of these decisions are going to be left to individual prosecutors. And also because doctors are going to have to operate under sort of the worst-case scenario of how this legislation can be interpreted.

It’s also worth talking about what Jesse said about these fetal personhood laws, because these have already been enacted in many, many states. The idea is to set a precedent for fetal personhood that would make it easier to conceptualize the fetus as a distinct person in the law, in the culture. The reason I think this is really, really important is because before Roe, women by and large were not going to prison for clandestine abortions. They would sometimes be threatened with prosecution in order to get them to testify against doctors or against abortion providers, but abortion was the crime — the crime wasn’t murder. And so we now have a very different situation after 49 years of arguing about fetal personhood, of arguing that abortion is kind of a type of homicide.

You’re already seeing a bunch of cases where women have been prosecuted under fetal homicide laws or fetal endangerment laws for doing drugs while they were pregnant, for attempting suicide while they were pregnant. And it’s only been Roe v. Wade that has stopped prosecutors from prosecuting women who have abortions. They’ve always had to have an exception in these fetal endangerment and fetal homicide laws for abortion because of Roe v. Wade. But that, in a few months, likely changes. So we already have some intimations of what this is going to look like.

Jane Coaston: There has been a lot of doom-saying and doom-scrolling going on online, particularly talking about what this could mean — that this will obviously mean that Loving v. Virginia is gone. Obergefell is gone.

There’s a whole paragraph of the draft decision that ties Casey to a bunch of decisions, including Loving v. Virginia, which struck down laws against interracial marriage. The case Skinner v. Oklahoma, which was about the right not to be sterilized without consent. Very disturbing. It also discusses such cases as Lawrence v. Texas, which ended sodomy bans, and Obergefell v. Hodges, which instilled marriage equality across the land. As someone who has now been married for seven years — huge fan.

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