Programming note: I’ll be off on Thursday and Friday. (I’m fine, Mom.) My work wife and your newsletter editor Emily Dobler Siddiqi will be subbing for me. Be nice! I’ll see you on Monday.
Some people first feared the demise of Roe v. Wade six years ago, when Donald Trump won the presidential election. Their fears solidified over time — a little surer after pro-choice Republicans voted to confirm Brett M. Kavanaugh; more heightened after restrictive state abortion laws were permitted to take effect; almost unbearable after the U.S. Supreme Court decided to hear a challenge to a different law in Mississippi.
The most prescient among us saw the writing on the wall before the ink had dried. I imagine that for them, the only real surprise this week was that the rest of us were surprised at all.
The Big Takeaway
To be fair, I don’t think the collective shock over the potentially imminent demise of Roe v. Wade — outlined in a draft opinion leaked from the U.S. Supreme Court on Monday — stems from disbelief that a panel of judges would strip away our bodily autonomy. We’ve long accepted that goal as a key tenet of American conservatism. But we’ve also been told repeatedly that Roe was settled legal precedent, and that it was safe. The court respects its own rulings! Several of the sitting conservative justices had said as much to lawmakers! Don’t be dramatic, the Twitter masses chided.
Still, I wouldn’t say people thought it couldn’t happen. I’d venture instead that they chose to believe it wouldn’t. Either way, here we are. No, the opinion isn’t final, and yes, the justices could revise it or change their stances completely, but that seems about as likely as Donald Trump announcing tomorrow that, actually, he did lose that election, sorry for all the drama! In other words, post-Roe America looms. Here’s what it might look like.
Absent federal codification of legal abortion, the demise of Roe would send decisions about abortion policy back to state governments. Should that happen, 26 states will likely ban the procedure entirely. Nine states have pre-Roe bans that would once again become enforceable if the U.S. Supreme Court overturns the law; an additional nine have “trigger” bans that would automatically take effect following that decision.
Most of those automatic bans were enacted recently, but only after decades of fine-tuning attempts at restrictive policies. Tennessee, for example, passed its “Human Life Protection Act” in 2019 after 20 years of behind-the-scenes machinations from anti-abortion activists and right-wing lawmakers, the Tennessee Lookout reported.
The policy traces back to 2000, when the Tennessee Supreme Court struck down a series of abortion restrictions approved by state lawmakers. The court’s justices ruled that the policies violated “part of the right to privacy” guaranteed by the state’s Constitution, which effectively meant that women in Tennessee had broader rights than the ones outlined in the U.S. Constitution.
The ruling made Tennessee an outlier among Southern states, where restrictive policies — things like waiting periods, mandatory ultrasounds and counseling for patients seeking to obtain abortion — were quickly becoming the norm. By 2012, a quarter of abortions performed in Tennessee were for people who had traveled there from other states.
The only way to circumvent the ruling was to amend the state’s Constitution, a mission that anti-abortion groups seized on. They triumphed in 2014, when a slim majority of voters approved an amendment that stripped the right to abortion from the document. The change allowed lawmakers to usher in a host of restrictive provisions. One of those was the trigger ban.
Under that law, if Roe is overturned, abortion becomes a class C felony for physicians in Tennessee, punishable by up to 15 years in prison and a fine of up to $10,000. The only exception is abortions needed to prevent death or “serious risk of substantial and irreversible impairment.”
Physicians can evade criminal prosecution for those procedures by providing proof either that they made a “best-faith effort” to deliver the fetus alive or that the patient had an emergent condition. (The inherent mental and emotional distress that comes from an unwanted pregnancy is specifically excluded.) The law would take effect 30 days after the high court ruling.
In other states, the future of abortion access remains murky. A pre-Roe ban will become active in Michigan if the law is overturned, unless state courts rule in favor of plaintiffs in two lawsuits seeking to invalidate the policy, per the Michigan Advance.
The first challenge, filed by Gov. Gretchen Whitmer, seeks to recognize a right to abortion in the state Constitution. The other, filed by an abortion provider, seeks to block enforcement of the state’s 1931 felony abortion ban. Activists are also circulating a petition to place a constitutional amendment on the ballot in November, which would give voters the chance to decide whether to affirm Michiganders’ right to make their own decisions about pregnancy, birth control and childbirth.
Things would become more complicated if all of those efforts fail. Dana Nessel, Michigan’s attorney general, has said multiple times she will not defend or enforce what she described as an “outdated, dangerous, cruel law.” That would leave prosecution in the hands of the court, which could require attorneys from Nessel’s office to intervene or tap the Legislature to defend the law on her behalf.
Other states made it clear they would continue to restrict abortion regardless of the court’s decision. A 15-week abortion ban will take effect in Florida on July 1, prompting providers to prepare rosters of clinics in other states for patients seeking services — and amassing funds to help them get there, per the Florida Phoenix.
Outside the Florida Supreme Court on Tuesday. (Photo by Danielle J. Brown/Florida Phoenix)
“As many as 40 percent of our clients from the Tampa Bay area will need to leave the state for care,” said Kelly Nelson, founder of the Tampa Bay Abortion Fund. “We are relying heavily on the national abortion network for support in this huge logistics endeavor.”
Other providers were considering more creative solutions, like launching an “abortion boat” that would anchor offshore and offer services outside of state jurisdiction. It’s been done before — officials said there was a similar setup in Ireland at one point — but for now the premise largely serves as an illustration of the ridiculous lengths patients may have to go to for health care in the future.
“We are not building a boat right now,” said Stephanie Fraim, president and CEO of Planned Parenthood of Southwest and Central Florida. “I used the concept of a ship offshore to make the point that we are going to have to have extreme measures.”
Personal impacts: Abortion is a frequent, favorite driver of legislation in New Jersey … Abortion rights protests erupt in Georgia and beyond. It could be a prelude of more to come. … Texas’ restrictive abortion law previews a post-Roe America … (Pennsylvania) Advocates, Democrats energized by possibility of U.S. Supreme Court overturning Roe v. Wade … (North Carolina) Five things to know about the leaked Supreme Court ruling and the future of abortion rights … (New Mexico) reacts to leaked opinion showing SCOTUS is poised to end federal abortion rights protections … Mountain State Spotlight explains: what a Roe v. Wade reversal could mean for West Virginians’ abortion access … Georgia election-year politics jolted by Supreme Court draft abortion opinion … Prospect of Roe v. Wade repeal puts abortion issue in (Connecticut) campaigns … After leak of draft SCOTUS opinion, Maryland lawmakers and candidates pledge action
Caught Our Eye
Because existing in this stupid timeline apparently isn’t hard enough as is, here’s a story from the Daily Montanan about people ruining national parks with their poop. It focuses on Glacier National Park, a 1 million-acre preserve with around 100 toilet “structures” that have no dedicated maintenance funding and are tended by just 10 workers. That’s a growing issue as more novice hikers use pit toilets and leave trash behind, attracting bears that dig and leave behind, well, a large mess of poop. It’s gross and has long-term implications, including increased bacteria like E. coli that can sicken nature enthusiasts.
From the Newsrooms
- (Virginia) The asphalt plant next door
- After violent attacks, Louisiana considers reversing juvenile justice approach focused on therapy
- Propelled by Trump endorsement, Vance wins (Ohio) GOP Senate primary
- (Michigan) Far-right Republican Robert Regan loses race in heavily red state House district
- (Arizona) Ending the ‘life of violence’: Raising awareness for Missing and Murdered Indigenous Women and Girls
One Last Thing
TurboTax will pay $141 million to customers who were deceived by its lies about free tax filing. No word on when TurboTax will have to answer for its role in perpetuating our preposterous tax system, where the government makes me figure out how much I have to pay it even though it already knows how much I am supposed to pay it. Maybe that is the thing we should be focusing our lawsuits on?
This edition of the Evening Wrap published on May 4, 2022. Subscribe here.
