Although a leaked copy of the draft Supreme Court ruling overturning the 1973 Roe v. Wade decision had been published in May, the official handing down of that decision on June 24 created a seismic shift in U.S. law eliminating the right of American women to access safe, legal abortions. The repeal of women’s reproductive rights after 50 years, will dramatically impact women in Republican-controlled states. Eighteen states have trigger laws or pre-existing bans that immediately outlaw all, or nearly all abortions. Twenty-six states in all are poised to ban abortions, effecting the lives of some 38 million women.
Criminalizing abortion historically hasn’t stopped people from seeking the procedure. Many poor women and women in communities of color without the means to travel to states where safe, legal abortions are available, will be forced to seek reproductive healthcare in potentially dangerous underground networks. While the FDA has approved medications to safely induce abortions, many states are attempting to prohibit women from being prescribed or receiving such pharmaceutical drugs.
Between The Lines’ Scott Harris spoke with Marjorie Cohn, professor emerita at Thomas Jefferson School of Law and past president of the National Lawyers Guild. Here, she talks about the serious impact the Supreme Court’s ruling will have on women nationwide and what if anything President Biden and Congress can do now to reduce the harm of outlawing women’s reproductive rights.
MARJORIE COHN: What this Supreme Court has done effectively is to wrench the right to self-determination away from half of the U.S. population. I think there’s no better way to put it. There are at least 10 states that effectively banned abortion as of Saturday night. Another five states are expected to enact what are called trigger laws limiting abortion in the coming period.
And once these trigger laws take effect, patients in Texas, for example, will have to drive an average of 542 miles to reach the nearest clinic that performs abortions. Patients in Louisiana will have to drive 666 miles one way. And in Mississippi, 495 miles. Missouri in Missouri State Rep. Mary Coleman is trying to keep pregnant people from leaving the state to get an abortion.
There are so-called sanctuary states like my state, I’m proud to say, California, which is setting up a support system for an influx of people seeking abortions from other states where it has been ruled illegal or it will be made illegal or banned. And these organizations are providing travel expenses as food, lodging, etc., for people seeking abortions, which I think is is is great.
Now, in Louisiana, Republicans are advancing legislation to allow prosecutors to charge abortion patients and providers with homicide. Usually we see possibly doctors, aiders and abettors, but not the people receiving the abortion themselves.
And SB 8, which is on the books now in Texas and this same right-wing majority of the Supreme Court allowed it to go into effect even before the court actually considered the merits of it. It bans abortion after six weeks of pregnancy when most people don’t even know they’re pregnant. And sets up and basically deputizes private people to sue aiders and abettors or people who perform abortions. So that could be a doctor, a nurse, a clinic, an Uber driver, a relative. And if they succeed in the lawsuit, they get $10,000 and attorney’s fees. It’s like a bounty on the heads of these people that are called aiders and abettors. And I think we’re going to see a proliferation of these really draconian laws banning or limiting abortion all over the country.
SCOTT HARRIS: This really is “The Handmaid’s Tale” come to life here, where we’re going to have people are spying on each other to get this $10,000 bounty and possibly other states. I’ve heard nightmarish scenarios of women who keep track of their menstrual cycles on a phone app where this information, this is digital information could be subpoenaed by a court in a state that bans abortion to target women who they suspect may have had an abortion out of state at a certain period of time.
You also have investigations that are going on or could go on in the future where women miscarry and there are doubts about the miscarriage, whether it was induced or natural. You want to speak to some of these horrible scenarios of a police state targeting women?
MARJORIE COHN: Yes, Scott, on the Internet, people can track what websites you visit. If people are looking for places to to receive an abortion, if their state outlaws it or restricts it severely, that can be traced. And if there are states that criminalize people who travel to other states, like Missouri is trying to do, that could be used by prosecutors, they could subpoena those Internet records.
And another name for miscarriages, spontaneous abortion and the procedure for dealing with a miscarriage, especially in the later stages of pregnancy, is identical to dealing with abortion. And to performing an abortion. And so I can see now allegations leveled against people who miscarry and perhaps charges being brought against them or doctors or other people who aid in dealing with the medical issues surrounding miscarriage, being accused of illegal abortion.
I mean, the the scenarios are frightening and endless.
SCOTT HARRIS: Could you sum up what’s the most important thing that President Biden and Congress can do right now in the short run to limit the damage here from this Supreme Court decision?
MARJORIE COHN: Well, if the filibuster were lifted, then they could pass a federal law that would enshrine the right to abortion. Unfortunately, it doesn’t look like that’s going to happen because of Manchin and Sinema, so-called Democrats in name only who don’t believe in lifting the filibuster. Although they claim to be pro-choice, at least Manchin does. Biden should ask his Justice Department to scour all regulations that could be used to protect the right to abortion and, you know, prevent the this really avalanche of tragedy that is going to befall us state by state.
But there are things, I’m sure, that they could do at the federal level that would mitigate some of that damage.
For more information, visit Marjorie Cohn’s website at marjoriecohn.com.
Listen to Scott Harris’ in-depth interview with Marjorie Cohn (16:03) and see more articles and opinion pieces in the Related Links section of this page.
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