The war on abortion drugs will be just as racist and classist

As we examine the potential implications of the Supreme Court’s overturning of Roe v. Wade, an open question is how states will enforce the abortion bans that are expected in at least twenty-six states. History suggests that future anti-abortion laws are likely to echo the “war on drugs”; they will not eliminate the prohibited behavior, but, through biased and targeted enforcement, will disproportionately harm the poor and people of color.

That abortion bans resemble the war on drugs is not merely metaphorical; more … than half of abortions are now made using a two pill treatment which terminates pregnancies up to ten weeks. Early in the Biden administration, regulations requiring abortion pills to be taken in a clinic or doctor’s office were lifted. A number of states allow pills to be delivered by post after a consultation with a healthcare professional, which in many cases can be done via telehealth. Abortion opponents are already moving towards make the drug inaccessible in anti-abortion states.

As the decades-long War on Drugs makes clear, law enforcement does not make drugs unavailable. On the contrary, the war on drugs has made it easy for the criminal justice system to target certain communities, especially the poor and people of color. And disparities in how drug policies are enforced infect every step of the system – the decision to arrest, the decision to charge and what charges to bring, the trial process and sentencing. Rich, white people rarely face serious drug charges — or even drug charges — for the same behaviors that would be charged against a poor person, a person of color, or someone in both categories.

There is every reason to expect a similar systematic bias in the enforcement of abortion bans. We know this because, while rare, states have actually prosecuted women for miscarriages or stillbirths. These cases reveal a clear pattern of racial and class bias. A study found that 59% of defendants were women of color and 71% could not afford a lawyer. Although some of the most flagrant cases to criminalize pregnancy sparked national outrage, the practice is widespread and becoming more common. Lawsuits have taken place in at least 44 states; of 1,600 registered casesthree-quarters have occurred in the past 15 years.

Abortion bans will almost certainly escalate miscarriage lawsuits, with particularly negative effects for women of color, given the underlying racial disparities in maternal and child health. Additionally, in anticipation of Roe’s reversal, some states have implement criminal penalties for people who have abortions, although pro-life activists have consistently argued that abortion bans only target doctors and others who help people access abortions. Just last week, Marjorie Dannenfelser, President of the Susan B. Anthony List (one of the largest anti-abortion interest groups in the United States) has declared that “woman will never be part of the punishment…women will not be penalized in any way”. But in South Carolina, for example, a person who has an abortion risk two years in prison. Legislation is moving forward in Louisiana to classify abortions as homicides.

Given the vicious history of racial bias in the criminal justice system, it is reasonable to anticipate that prosecutions under such laws would also be influenced by racial and class bias. As in the war on drugs, the smaller a person’s bank account and the darker their skin, the more likely they are to face criminal charges. And, as along sentencing for drug-related offenses, these laws would break up families. People who have abortions are usually already mothers; fifty-nine percent of patients who have undergone an abortion have already had a child.

In addition to the likelihood of racist enforcement practices, abortion bans may resemble the war on drugs in another way – by making the targeted behavior much more dangerous, but not much less common. The legalization of cannabis offers an excellent parallel. When cannabis is grown in a well-regulated market, its products are tested for a variety of adulterants that ensure that the product the individual is consuming is safe. These same tests do not occur in the illicit market and the risks of contamination from a variety of products and by-products increase. The same goes for safe injection sites. Individuals’ medications are tested for adulterants – including the presence of fentanyl – and clean needles are provided to reduce (not eliminate) health risks.

Restrict abortion does not prevent abortion to occur. Although abortion has been increasingly restricted for decades, it remains a common practice; currently almost one in four women in the United States will have an abortion at age 45. Abortion restrictions, however, have a significant impact; they or they make abortion much less safe. Most Americans – anyone under 60 today – were not of childbearing age in pre-Roe America, when more than 100,000 illegal abortions occurred each year. Criminalizing access to safe, early treatments like the abortion pill will lead more women to seek out risky, unauthorized procedures later in pregnancy – the kind of procedures that, before Roe, could sometimes be deadly.

With the Supreme Court’s final decision uncertain, many questions remain. It is unclear, for example, whether access to abortion will be constitutionally protected for children who have been rapedor how state abortion bans might affect in vitro fertilizationor the implications of the decision for other decisions taken for reasons of confidentiality, such as birth control and same-sex marriage. What is clear, however, is that abortion bans will most likely add a new chapter to this country’s long history of injustice by abusing the poor and people of color under the guise of criminal justice.

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