THENEWYORKER,FEBRUARY28, 2022 15
COMMENT
APOST-ROETH REAT
J
anuary 22nd marked the forty-ninth
anniversary of Roe v. Wade—and,
likely, the last year that its protections
will remain standing. In December,
during oral arguments, the Supreme
Court’s six conservative Justices signalled
their intention to uphold a Mississippi
law that, in banning almost all abortions
after fifteen weeks of pregnancy, defies
Roe’s protections. Most of those Justices
seemed prepared to overturn Roe en-
tirely. Without Roe, which prohibits
states from banning abortion before fetal
viability—at twenty-eight weeks when
the law was decided, and closer to twenty-
two weeks now—abortion could become
mostly inaccessible and illegal in at least
twenty states.
Some of the potential ramifications
are obvious. The majority of people who
get abortions are already mothers, and
seventy-five per cent live near or below
the federal poverty line. It is the least
advantaged of this disadvantaged group
who will be unable to cobble together
the time, money, and child care required
to travel across state lines to determine
their own reproductive futures. Some
will be able to self-administer abortions
through telemedicine and mail-order
pills—a safe and increasingly common
method for early pregnancies. But, for
those who can’t, the long-term conse-
quences could be severe. The Turnaway
Study, a research project that tracked a
thousand women seeking abortions in
the United States in the course of five
years, found that women denied an abor-
tion have an almost four times greater
chance of living below the federal pov-
erty line than women who were not de-
nied one, as well as an increased risk of
serious health problems; and their chil-
dren are more likely to grow up in an
abusive environment.
But there are other severe, metasta-
sizing consequences that could follow
Roe’s repeal. Roe rejects the idea of fetal
personhood, which is a pillar of the anti-
abortion movement. It also repudiates
the argument that the Fourteenth Amend-
ment grants equal protection, and con-
sequently equal legal standing, to fetuses.
(That claim was used as early as 1971,
when a lawyer filed suit against the state
of New York over its liberalized abortion
law, and it has been resuscitated by orga-
nizations such as the March for Life,
whose 2022 theme is “Equality Begins in
the Womb.”) The Supreme Court re-
ILLUSTRATIONS BY JOÃO FAZENDA
THE TALK OF THE TOWN
mains a distance away from this extrem-
ist position—even Justice Antonin Sca-
lia said that the Constitution applies only
to “walking-around persons.” Still, anti-
abortion groups have been pushing fetal
personhood on state legislatures, which
have introduced more than two hundred
pieces of legislation supporting it in the
past decade. Most of the bills have failed;
they are unpopular as well as unconsti-
tutional. But, in 2019, Georgia passed a
near-total abortion ban that allows a fetus
to be claimed as a dependent on one’s
taxes. (The same year, a judge in Alabama
allowed a man to sue an abortion clinic
on behalf of an aborted embryo’s estate.)
The Georgia law is currently before the
Eleventh Circuit Court of Appeals, await-
ing the Supreme Court’s Mississippi rul-
ing. If such laws can no longer be chal-
lenged at the federal level, they will surely
begin to proliferate in earnest.
Recent events in Oklahoma provide
an example of what might follow. Though
the state’s Supreme Court struck down
a fetal-personhood amendment to the
state constitution in 2012, the idea has
been affirmed in other ways. In 2015,
state law was amended to require that
any fetal death past twelve weeks be re-
ported as a stillbirth. The Humanity of
the Unborn Child Act, passed in 2016,
requires that the state department of
health “clearly and consistently teach
that abortion kills a living human being.”
Since 2017, according to a report by the
Frontier, an Oklahoma journalism non-
profit, at least forty-five women in that
state have been charged with child abuse,
child neglect, or manslaughter because
of drug use during pregnancy. In 2020,
