26 United States The Economist April 16th 2022
AbortionWhat happens after Roe
A
woman inMissouri who decides to
end her pregnancy has a choice, of
sorts. She can go to the state’s last remain
ing abortion clinic, in St Louis, where state
law dictates she must be told that “the life
of each human being begins at conception”
and warned of the psychological damage
the termination could cause. She must
then wait 72 hours before returning. Or she
can travel 15 miles (24km) east, across the
Mississippi River, to a larger clinic in Fair
view Heights, Illinois, where the doctor (it
may even be the same one) can speak to her
patient as she thinks best. The abortion
can be done that day.
This gulf between two neighbouring
states illustrates the mess that surrounds
abortion in America. Since 1973, when the
Supreme Court ruled in Roe v Wadethat
abortion was a constitutional right, law
makers in conservative states have intro
duced hundreds of regulations designed to
make it hard for abortion clinics to func
tion. Missouri is one of six states with only
one clinic left.
The mess may be about to get much
worse. This spring or summer the justices
will rule on a law in Mississippi, blocked
by a lower court, which bans abortions
after 15 weeks of pregnancy. If they use the
case to overturn Roe (thus sending deci
sions on abortion back to the states), the
repercussions will be momentous. More
than half the states are likely to make mostabortions illegal (see map on next page). In
November, Americans will vote in mid
term elections. Republicans currently look
likely to win back Congress, but if Roeis
overturned Democrats will hope it will
energise a broad range of voters.
How likely is the Supreme Court to
ditch Roe? At first, it seemed its conserva
tive majority might use the case to lower
the gestational limit on abortion on de
mand. The court had done this before: in
1992 it lowered that set by Roe(26 weeks) to
fetal viability (around 23 weeks). Though
abortionrights activists rail against lower
ing the limit, it would change little: the
vast majority of abortions happen in the
first 12 weeks. It would also reflect popular
opinion. Though many states impose
stringent restrictions, America has one of
the most liberal frameworks in the world:
of 59 countries that allow abortion on de
mand, it is one of only seven that allow it
after 20 weeks. Polls suggest most Ameri
cans’ support for abortion drops dramati
cally after the first trimester.
But abortionrights groups are increas
ingly concerned that the court will scrap
Roealtogether. In September Texas banned
all abortions after about six weeks of preg
nancy, with no exceptions for rape or in
cest, and the court failed to stop it. That
seemed to express five justices’ belief that
Roeis not worth upholding.
Then in December the conservative justices made this plain. During oral argu
ments in the Mississippi case, Brett Kava
naugh, one of Donald Trump’s three nomi
nees, cited many occasions when the court
had overturned earlier decisions and sug
gested it should be “neutral” on an issue
about which the constitution says nothing.
Mary Ziegler, a legal historian at Florida
State University, says that because intro
ducing a new gestational limit would make
it harder for the court to overturn Roelater,
the likeliest alternative, “would be to do
something more modest, such as saying
viability is the wrong line and the right line
could be decided in future cases”. The
question, she says, is whether Roe will be
reversed “gradually or immediately”.
A gradual reversal could come about if
the court undermined the viability stan
dard. Antiabortion states could pass all
sorts of bans and expect that the courts
would be more likely to uphold them. In
the event of an outright reversal, the im
pact would be immediate. Twelve states al
ready have “trigger laws” that would click
into effect the moment Roewas undone; a
further 12 are expected to dust off preRoe
bans or make new ones. Congress is un
likely to provide a remedy. Though House
Democrats have passed a bill that would
guarantee abortion rights, it has little
chance in the Senate.
Texas offers a glimpse of how this
would play out. On September 1st, the first
day clinics in America’s secondmostpop
ulous state were forced to turn away pa
tients, those in nearby states saw a sudden
influx. Kristina Tocce, medical director of
Planned Parenthood of the Rocky Moun
tains in Denver, Colorado, says she saw a
1,650% increase in the number of patients
from Texas in the 45 days to midJanuary
compared with the same period last year.
“If Roeis overturned I fear Texas is a pro
logue to absolute chaos and confusion,”
she says.
When Sara (not her real name) drove
from Texas into Oklahoma, having distri
buted her seven children among several
sitters, and stayed in a hotel, it cost her half
her monthly income. Groups which help
women with such costs say they have been
flooded with requests for support. Anna
Rupani, the director of Fund Texas Choice,
says donors have been quick to step up, but
she worries about what will happen if a lot
more cash is suddenly needed.Getting ready for the rush
Even before the Texan law, clinics in states
with decent abortion provision had be
come used to serving women far from
home. This has helped them prepare for
the demise of Roe. In Illinois, Planned Par
enthood, the biggest supplier of abortions
in America, has been readying itself for
years. The clinic in Fairview Heights was
built in 2019 to handle growing numbers ofFAIRVIEW HEIGHTS, ILLINOIS, AND JACKSON, MISSISSIPPI
Defenders and opponents of abortion alike are preparing for a frenzy