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Here's what happens if Trump's Supreme Court makes abortion illegal

Women in the South will be hit hardest.

By Lisa Needham - September 29, 2020
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Donald Trump

With Trump’s decision to nominate a staunch abortion foe Amy Coney Barrett to replace Justice Ruth Bader Ginsburg on the Supreme Court, the court will have a 6-3 conservative majority. And with that, it’s possible that the Court’s next abortion case could be its last, and Roe v. Wade would be dismantled. 

Here’s what that could look like in some of the most anti-abortion states in the country. 

As of now, 10 states have trigger laws, which would automatically make abortion illegal or almost entirely illegal if Roe were overturned. In Mississippi, for example, there is a law that takes effect 10  days after Roe is no longer the law of the land. 

In some ways, making abortion formally illegal in Mississippi isn’t a huge shift. The state already makes it incredibly hard to get an abortion. There’s only one standalone clinic, and 99% of people live in counties with no clinics. 

Earlier this year, the state passed a  ban that criminalized abortion depending on the reasons people were seeking the procedure. Additionally, the state has mandatory counseling and a 24-hour waiting period. Mississippi requires parental consent for minors to get an abortion. The state bans telemedicine for medication abortion and bans the most common method of second-trimester abortion. Patients are also required to get an ultrasound before getting an abortion. 

If the Supreme Court undid Roe, though, Mississippi could go much further much faster. Once the trigger law takes effect, abortion is entirely banned unless the mother’s health is at risk or there’s a pending rape trial. 

Worse, Mississippi is surrounded by states defined as hostile to abortion by the Guttmacher Institute, which tracks reproductive health policy. A state is considered hostile the more anti-abortion laws it has on the books. It’s not unlikely that many of those states — Tennesee, Mississippi, and Alabama, for example — would also ban or significantly restrict abortion. 

That would mean traveling to obtain an abortion in a state where it remained legal would be a big burden, as the distance would be lengthy, and overnight stays would almost certainly be required. Indeed, some abortion advocates go so far as to say that “the whole South goes dark as far as abortion care” if Roe is overruled. 

Mississippi already has very high maternal and infant mortality. There’s also a vast racial disparity in those mortality rates. Banning abortion won’t fix that and may even exacerbate it. 

Alabama is in a slightly different position than Mississippi. That state passed a law that functionally banned abortion in late 2019, but that law was stayed by a federal court, which ruled it unconstitutional, so it never took effect. That’s a fragile way to preserve abortion rights. The case has never been settled, nor has it been dismissed, nor has it been addressed by a higher court. 

The Alabama law bans abortions even in the case of rape or incest, and doctors can face up to 99 years in prison for performing the procedure. Without evidence, it declares that “medical science has increasingly recognized the humanity of the unborn child.” It also invokes the horrors of the Holocaust, the killing fields of Cambodia, the Rwandan genocide, and the Soviet gulags —all in the service of saying abortion is worse. 

Alabama’s situation is a bit different than that of Mississippi because its law isn’t a trigger law. It isn’t set to automatically take effect if Roe is nullified. Alabama would either need to pass a new law or continue to litigate over the existing law. That said, the state has a staunchly anti-abortion legislature and governor, so a full ban wouldn’t likely be hard to pass. 

As with Mississippi, Alabama is surrounded by states hostile to abortion. Given the geography, people in Alabama who need an abortion would have to travel to Illinois or Delaware to get to a state that is supportive of abortion. The former is roughly a 10-hour drive; the latter a 13-hour drive, making it an arduous and very expensive trip.

As it stands, Alabama doesn’t have a great track record of helping mothers and families. It currently has the third-highest maternal mortality rate in the country, more than double the national average. The state doesn’t even do a very good job of tracking or investigating those deaths — it’s mostly done by a group of volunteers

A report from Ibis Reproductive Health notes that Alabama has almost no policies improving access to health. They declined to expand Medicaid, they won’t expand access to the Family Medical Leave Act, and they don’t have paid sick leave. In a state where the lives of pregnant people are already treated shoddily, an abortion ban will make that worse. 

Some states never got rid of their pre-Roe abortion bans. That’s the case in Wisconsin. There, it’s unclear what would happen if Roe were overturned. One possibility is that the old law would simply be in effect again, as it has been on the books all these years. Another option is that the legislature might have to pass a new law. 

That might seem unlikely in a state where the majority of the population favors abortion in all or most cases. However, Wisconsin’s legislature is more hostile to abortion than its populace. The state already has several abortion restrictions. There’s both a mandatory waiting period and mandatory counseling. The state requires patients to get an unnecessary ultrasound and bars the use of telemedicine for people who want to obtain a medication abortion. 

Wisconson has a Democratic governor, but it also has a gerrymandered GOP-controlled legislature that could likely get a supermajority to pass a new abortion ban law if that was necessary. 

Wisconsin would be in a slightly better position than the southern states in that Minnesota and Illinois both look unlikely to ban the procedure, giving people who can travel some access. That’s still a burden, however.

The researchers at the Guttmacher Institute have learned that when they look at countries where abortion is illegal, the abortion rates in those countries remain roughly the same as those where it is legal. If you exclude India and China, abortion rates are higher in countries where it is illegal. Illegal abortions, which are much more likely to be unsafe, may become the norm in states like Mississippi, Alabama, and Wisconsin. 

Overall, it’s likely abortion would be banned in a large number of states. Nine states have unenforced pre-Roe bans that still exist. Ten states have trigger laws. Seven have made it clear they’ll restrict abortion as much as the law allows. In contrast, only 14 states appear to want to affirmatively protect the right to abortion. 

Robin Marty, an abortion activist and the author of “The End of Roe v. Wade,” told the Cut, “I think it’s fair to say we’re going to see abortion is completely illegal except for the West Coast, which is on fire, the Northeast, and then basically Colorado, Minnesota, Illinois, and New Mexico.”

If that’s the case, millions of people will be unable to access abortion care, and that’s a grim picture. 

Published with permission of The American Independent Foundation.


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