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Murder charge heralds a frightening new phase in fight for abortion

If the Supreme Court strikes down Roe v Wade, the US won't go back to 1973. It will be something different — and dangerous.

By Emily Tamkin

WASHINGTON DC – In what was surely a sign of things to come, a woman from Texas was charged with murder for a self-induced abortion, meaning an abortion induced outside of medical care, including by abortion pills.

In this instance, a district attorney announced that the charges would be dropped. But with the passage of increasingly severe anti-abortion laws across the US and the expectation that the Supreme Court, with its majority of conservative judges, will strike down Roe v Wade — the ruling that a person has a right to an abortion without excessive restriction — the charge could well be a harbinger of things to come.

It is not true, exactly, that the US will go back to the “pre-Roe” days after the Supreme Court’s expected decision this summer. For one thing, getting an abortion is already difficult in many parts of the country; according to the Guttmacher Institute, a sexual and reproductive health research centre, 89 per cent of US counties do not have an abortion clinic. A Texas law that went into effect last autumn banned abortion as soon as any cardiac activity could be detected. That’s around six weeks of pregnancy, or roughly two weeks after a missed period. This week Oklahoma, which had been a destination for people from Texas seeking abortions, signed into law a bill that effectively bans all abortion, including in cases of rape or incest.

[See also: The Texas abortion ban is a threat to women everywhere]

Some will also note that people do, at least in theory, have greater access to abortion than they did in the days before Roe v Wade. If abortion is solely left up to the states it will be legal in roughly half the country. Yet here, too, people will find themselves in uncertain territory.

For many people, particularly those with fewer resources, or who are minors, or who already have children to look after, getting to a different state can be difficult, if not near impossible. There may be legal impediments, too: Missouri, for example, is considering a law that would effectively make it illegal to cross state borders to legally get an abortion (the legislation, if passed, would allow citizens to sue anyone who helps someone to go out of state for the procedure).

“It’s interesting that the people who work so hard to make abortion illegal also claim that they don’t want to punish women, that no women will be punished or prosecuted or, don’t worry, they can go out of state,” Leslie Jean Reagan, a professor of women’s and gender studies at the University of Illinois, Urbana-Champaign, said. “Of course, they will be punished. First there will be arrests and prosecutions initiated, as in the recent Texas case, regardless of the law. Second, people who have abortions will be punished even if they are not prosecuted, just as they were for the century when abortion was illegal.”

[See also: A dark day for abortion rights in America]

Pharmaceutical advances mean that people can effectively give themselves abortions with pills. In fact, according to the Guttmacher Institute, most abortions in the US are induced by medication. This is the first time that that has been the case since one of them, mifepristone, was approved by the US Food and Drug Administration 20 years ago.

But here, too, there are complicating factors. People will need to know how to seek out the medication, for one thing. For another, state legislatures are now turning their attention to “abortion pills”. Texas has passed a law making it a felony to provide abortion pills through the mail. In Missouri lawmakers have put forward bills that would treat sending abortion pills like drug trafficking. A similar bill in Tennessee would, if passed, outlaw sending such pills.

How effectively people could monitor one another’s mail — that is, how well these laws could actually be enforced — is as yet unclear. “I think what will happen is that a lot of people will be scared,” said Jennifer Nelson, a professor of women, gender, and sexuality studies at University of Redlands.

These pills can also only be used early in pregnancy, Reagan, author of When Abortion Was a Crime, noted. “People who use abortion pills are advised to have a check-up, but if they fear being reported to police for a miscarriage, then many will not go in. Most no doubt will be fine, but some may not or may have an ectopic pregnancy that needs attention.”

Can you actually police someone for leaving the state to get an abortion? Can you actually detect every abortion pill coming into Tennessee or Texas by mail? Perhaps, perhaps not. But, as Nelson said, “people will [have] varying levels of understanding what their legal risk is”. The bills themselves could have a chilling effect.

On the other hand, there is still an additional difference between now and before Roe v Wade, said Nelson. That ruling was in 1973. Abortion has been legal in the US for 50 years. People’s mentality is not what it was in the days before Roe, she said. The determination of anti-abortion activists and legislators is strong but, said Nelson, “I just wonder if we might see” some backlash against these laws.

It will now be those who believe in the right to an abortion who will be fighting for a return to the way things were. And in fact a majority of Americans do say that abortion should be legal in all or most cases. Whether that can be translated into political action, as opposed to private preference, remains to be seen, particularly given who will be most affected.

“Making abortion hard to get or illegal will hurt everyone,” said Reagan, “but the people who will be most harmed are poor women, teens who lack support and may be most easily subject to misinformation, immigrants whose legal status may be threatened, and women of colour.”

[See also: The Satanic Temple is fighting for abortion rights in Texas]

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