This clashing bifurcation is already beginning to unfold: Legislators in Connecticut passed a bill last week designed to protect abortion providers who assist patients seeking refuge from abortion-ban states. Other blue states should follow this lead.
Meanwhile, 26 states are ready with laws to enact abortion bans when Roe is undone and are passing ever more elaborate ways to criminalize abortions. Over a dozen of these states recently passed bans in their legislatures; other laws predate Roe but remain on the books and could snap back into effect. At present, only 16 states and Washington, D.C., have laws that actively protect the right to abortion.
Major interstate court battles along these lines are set to erupt after Roe — from the policing of women and other pregnant people’s interstate travel, to the functioning of telehealth services that can prescribe abortion pills across state lines, to the criminalization of those who share resources and material support to aid abortions.
The Columbia Law Review paper’s authors highlight that these fights will make a mockery of Republican claims that Roe has made abortion law more, rather than less, complicated. If legal confusions produce openings after Roe — spaces to set up new access sites and build greater networks, while finding new loopholes and ways to be ungovernable against repressive government action — we must take such advantage where we can.
It’s already clear that there will be more arrests, prosecutions, and imprisonments of abortion providers, supporters, and seekers. A recent attempt by a local law enforcement agency in Texas to charge a young woman, Lizelle Herrera, with murder in connection to a “self-induced abortion” failed because no such murder statute for charging pregnant people currently exists in the state. We have seen, though, how swiftly such laws are changing for the worse.
The policing of this post-Roe world gives us much reason to fear — but even more reason to resist, and fight with and for the communities with the least power, who will no doubt be the most targeted.
Networks already exist to send abortion medication to jurisdictions where it has been made illegal. These will have to grow, using various online tools and techniques, physical mailing systems, and assistance with transportation — especially to ensure that those with the fewest resources are reached.
Crucially, though, this fight is something to join, not invent anew. Many will be shocked by the end of Roe, but they need to realize that there are existing efforts and groups on the ground that need support, more so than major organizations like Planned Parenthood.
Contrary to liberal mythologizing, the battle for bodily autonomy and justice did not begin at the Supreme Court, and it will not end there.
One thing that is abundantly clear in this still-emerging landscape is that we cannot focus solely on the law. Republican terror tactics against abortions have not hewed to existing statute; they have forged new realities to de facto ban abortion through brutal state action in clear violation of existing constitutional law and done so in the knowledge that these constitutional protections were on their last legs. The same extralegal Republican approach informs the right’s attacks on trans lives, and they are constantly pushing it further.
In his draft opinion, Alito also criticizes Lawrence v. Texas, which invalidated sodomy laws, and Obergefell v. Hodges, the ruling that legalized same-sex marriage. “[N]one of these rights,” the justice wrote, “has any claim to being deeply rooted in history.” This is what fascists and their allies are fighting for: not just an end to abortions, horrifying enough as that is, but the palingenesis of a nation, in which the only rights permitted to stand are those that protect property, patriarchy, and whiteness — such, in Alito’s own framing, is the rooting of U.S. history.
Contrary to liberal mythologizing, the battle for bodily autonomy and justice was never won in the Supreme Court. The fight did not begin at the court, and it will not end there. On Monday night, a crowd of many hundreds gathered outside the Supreme Court building in Washington, chanting, “Fascist scum have got to go.” It is certainly in this antifascist spirit that the fight must go on.
The End of Roe