The United States Supreme Court has struck down Roe v Wade, the landmark 1973 decision that enshrined the legal right to abortion in the United States into federal law, reversing nearly 50 years of precedent and stoking a deep ideological divide .
Last week’s decision is the result of decades of relentless organizing by conservative anti-abortion rights groups in the United States, which are now looking to the fight to shape the post-Roe landscape.
In 2020, more than half of abortions in the United States were pill-induced, which could complicate efforts by conservatives to enforce abortion bans.
Abortion pills such as mifepristone and misoprostol will now take center stage in battles between conservative states seeking to limit abortion and liberal states fighting to protect it.
Anti-abortion rights groups have indicated they will take an increasingly punitive approach to restricting the availability of abortion pills, going so far as to promote potential jail time for those who share information about their use in states where abortion is prohibited.
“The harder these bans are to enforce, the tougher the measures anti-abortion groups will demand,” said Mary Ziegler, a law professor at the University of California, Davis who has studied the anti-abortion movement. “They will have to turn to more sophisticated surveillance methods to punish those who provide information on medical abortions,” she told Al Jazeera.
“A completely different landscape”
There is no indication that a lack of popular support will dissuade these groups from pursuing a maximalist approach to restrictions.
In the conservative state of Texas, a Quinnipac poll found nearly 80% of voters support abortion exceptions for pregnancies resulting from rape or incest. But the state’s automatic ban, which takes effect 30 days after the decision, allows no exceptions.
With Roe invalidated, anti-abortion rights groups face a “completely different landscape” that will give states the chance to “revisit” policies that weren’t possible before, Laura Echevarria, spokeswoman for the group anti-abortion advocacy group National Right to Life Committee (NRLC), told Al Jazeera.
The group released a “model law” on June 15 that states could use as a model for their anti-abortion laws in the wake of Roe.
A section of this model suggests criminal penalties for those who aid and abet abortion access, which may include anyone who offers advice on how to obtain pills by “telephone, internet or any other means. “.
California has declared its intention to become an abortion “sanctuary” and has taken steps to prepare for an influx of people coming into the state for abortions and to protect providers from efforts by conservative states to penalize them .
The NRLC model law states that meaningful enforcement of abortion bans will require a “much more robust enforcement regime” to counter factors such as abortion pills and blue states that may take action to protect providers , a coalition of actors the group calls “the illegal abortion industry.” ”.
Elected officials such as district attorneys, who in the U.S. criminal justice system have great flexibility in deciding which crimes to focus law enforcement efforts on, could also play a role.
On the day Roe was ousted, the progressive group Fair and Just Prosecution released a statement signed by dozens of prosecutors and prosecutors across the country pledging that, even in states where abortion is banned, they will not focus their prosecution efforts on Abortion-related cases.
It’s a strategy that some conservative states and anti-abortion groups have anticipated.
Texas is considering legislation that would give DAs the power to prosecute cases in municipalities other than their own, giving conservatives the ability to crack down on areas under the control of more liberal officials who might not prioritize the enforcement of abortion bans.
The NRLC also identifies prosecutors as an influence to counter, saying “radical Democratic prosecutors” can “refuse to enforce pro-life laws after Roe,” and recommends empowering state attorneys general to prosecute cases that violate abortion bans if local officials do not. .
“The anti-abortion movement has aligned itself more with a Republican party that tends to take a tougher approach to law enforcement in general,” Ziegler said. “In the southern states where many of these bans are taking place, there is already a very punitive approach to criminal justice and incarceration. So the approach will reflect that.
A December 2021 decision by the federal health agency, the Food and Drug Administration (FDA), expanded access to abortion pills by allowing them to be delivered by mail.
It’s a decision that has drawn outrage from anti-abortion rights groups such as Students for Life Action, which said in a statement that the FDA had “cleared the way for the abortion industry to deliver death by mail”.
Anti-abortion rights groups have always sought to portray medically induced abortions as dangerous and unpredictable, but that’s not a position rooted in scientific evidence.
Several studies have shown the practice to be safe, and various health organizations, including the World Health Organization, have stated that abortion pills can be taken safely without a doctor present.
Following Roe’s overturning by the Supreme Court, U.S. Attorney General Merrick Garland said conservative states would not be able to ban abortive drugs such as mifepristone “due to a disagree with the expert judgment of the FDA on its safety and effectiveness”.
Hey Jane, a telehealth abortion provider, told Al Jazeera in a statement that “abortion care by mail is now probably the most viable form of access for most of the country.”
Other vendors based outside of the United States, such as the Aid Access group, could also pose a challenge to conservatives seeking to penalize vendors: it’s hard to see what avenue is available to crack down on these groups, which have l used to send the pills to countries where abortion has been illegal for years.
Still, liberal states seeking to protect abortion rights and help those who travel from red states to seek them will face their own challenges, and conservatives have vowed to target people who travel to get abortions. , even in states where they are still legal.
One of these challenges will be the increased scale of demand that blue states will have to meet. The Guttmacher Institute, an abortion rights research group, has estimated that California could become the closest source of abortion care for hundreds of thousands of women. State Governor Gavin Newsom has asked for funds to prepare for an “influx of women seeking reproductive health care” in California.
Abortion restrictions in red states could evolve over time as conservatives test various enforcement strategies. But stopping abortion pills from arriving in the mail may require more invasive measures than anti-abortion rights groups have so far been willing to promote.
Janna Farley, spokeswoman for the South Dakota branch of the American Civil Liberties Union (ACLU), told Al Jazeera she was unsure how the Tories could enforce the ban on abortion pills.
“I don’t know what they could do, short of opening people’s mail,” she said.
South Dakota voters twice voted against banning abortion in the early 2000s, one of which included exceptions for rape and incest. A tripping ban that took effect after Roe’s cancellation does not include such exceptions. “It would appear there is no appetite among voters for this,” Farley said. “But this is a majority Republican state. I don’t think our elected officials care that these policies are unpopular.