We’re not going back to “before Roe v. Wade ”. We are going somewhere worse.

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There has been a trend, in the week since it became clear that the United States Supreme Court will likely uphold Mississippi’s unconstitutional 15-week abortion ban or overturn Roe vs. Wade bluntly, to suggest that when this happens America will return to the “pre-Roe deer. “This means, it is assumed, that we will return to a patchwork of laws in different states and that we will see the grim return of women attempting to terminate their own pregnancies with sometimes fatal results, as well as illegal abortions in the future. backstage that was the norm before Roe deer became law. But it is not entirely correct to say that this would be a simple return to life beforeRoe deer: If the bolder voices of the pro-life movement were successful, America would not return so much to what it was beforeRoe deer past but sliding aside into something that could be — believe it or not — much worse.

Michelle Goldberg made this point two years ago in The New York Times, after Alabama, Georgia and Missouri passed a series of unimaginably punitive (at the time) abortion bans immediately after. that Brett Kavanaugh served on the Supreme Court. As she wrote at the time, “It is important to understand that we are not necessarily facing a return to the past. The new wave of anti-abortion laws suggests that a post-Roe America won’t look like the country until 1973, when the case was decided. It will probably be worse. “

Anyone who listens intently to the newly ascending views of abortion opponents can hear it – the discourse on legal ‘fetal personality’ and the punishment of mothers who endanger an embryo takes us into a new, unexplored theological realm. which is very different even from the status quo before Roe deer. Of course, we now hear abortion opponents utter many platitudes about the need for better social safety nets (as if such things had not been desperately needed for decades). But a better social safety net to help reluctant mothers bear, give birth and then raise unwanted children is actually not where we are headed.

Prior to Deer, faith groups were hardly monolithic in their opposition to abortion. Many religious leaders have strongly sided with the health and well-being of mothers. The National Association of Evangelicals adopted a resolution in 1971 recognizing “the need for therapeutic abortions to protect the health or life of the mother, as in the case of tubular pregnancies” and conceded that pregnancies “resulting from rape or of incest… dismissal, but the decision should only be made after receiving the most sensitive medical, psychological and religious advice. The Southern Baptist Convention had passed resolutions asserting that people should have access to abortion for a variety of reasons in 1971, 1974 and 1976. But in the decades that followed, uncompromising religious opposition to Roe deer both solidified and moved the goal posts. Since 1984, the Republican Party platform has called for a constitutional amendment banning abortion nationwide. The ground has moved.

In other words, it does not necessarily end with “the return of abortion to the States”. Speaking to The New Yorker’s Isaac Chotiner this week, Marjorie Dannenfelser, list president Susan B. Anthony, spoke of plans for a 15-week nationwide abortion ban in the years to come. Religious groups that oppose abortion are now talking openly about a project presented by academics such as John Finnis, professor emeritus at the University of Notre Dame, who argued in the Catholic journal First Things that lawmakers who wrote on 14e The amendment considered unborn children as persons, so that unborn children would receive full guarantees of equal protection and due process of law under the 14e Amendment. Finnis and Robert George also filed an amicus brief with the Supreme Court in Dobbs v. Jackson Women’s Health Organization, urging the court to make all abortions illegal. As Garrett Epps pointed out this fall, in their brief they insisted that the ‘ban’ on abortion is’ constitutionally mandatory because unborn children are. people in the original public meaning of the due process and equal protection clauses of the Fourteenth Amendment. Yes, they argue that the notion that any fertilized egg is a full human person falls within the “original public sense” of 14e Amendment. The push for such protections, while still dismissed as somewhat marginal, can be seen in Justice Clarence Thomas’ enthusiasm for equal rights for unborn children, and this includes, of necessity, the punishment of women who put their pregnancy at risk.

Take a break to remember it before Roe deer, it was largely the doctors who performed abortions who were subject to criminal penalties. But as states continue to enact fetal person laws, we will also continue to see draconian punishments inflicted on women who miscarry, use drugs during pregnancy, attempt suicide during pregnancy, and who suffer from complications around a cesarean section. The case of Brittney Poolaw, the 19-year-old woman from Oklahoma who went to Comanche County Memorial Hospital after miscarrying at home and was sentenced to four years in prison for manslaughter for drug use – is a pretty good predictor of where we’re headed. If a fetus or embryo is a person for the purposes of the law, it stands to reason that mothers will stand both for the “righteousness” and the “mercy” that Dannenfelser bestowed in his interview with Chotiner. A report by the National Advocates for Pregnant Women and the National Association of Criminal Defense Lawyers found that there are “over 4,450 crimes in the federal penal code, tens of thousands of state penal provisions – including criminal abortion laws – still in effect, as well as conspiracy, attempt and state accomplice laws that could expose a wide range of individuals to criminal penalties if Roe deer is knocked down. Even criminal laws that have absolutely nothing to do with abortion on the face of it – including prohibitions on possession of a “dangerous drug” – can and have been used by zealous prosecutors to punish female patients who have suffered. an abortion.

It is important to understand that whatever reality isRoe deer, it was not solely or fundamentally a theological opposition to female autonomy that fueled the opposition to reproductive freedom. At the time, it was more of a paternalistic notion that women were essentially full-sized children who needed to be protected from predations by abortion providers, yes, but also protected from draconian punishments from states. In the amicus brief submitted by Finnis and George, there is a proposed solution to the problem of women making bad choices once abortion is illegal everywhere. As they explain:

States may view levels of guilt as mitigating factors or may exclude some participants in wrongful homicides altogether from prosecution. Here, such policy choices serve legitimate purposes by equitably balancing the humanity of the child with his unique physical dependence and impact on his mother. And the constitutional rights of the mother might require states to allow urgent or life-saving medical interventions, even when these would inevitably result in the death of the fetus.

The State, in short, does not have punish mothers who terminate their pregnancy, intentionally or by accident. The State in its infinite mercy can weigh the circumstances and sometimes be indulgent with the pregnant woman, who, for example, requested “vital medical interventions”. We now have all the exposure of life beforeRoe deer but none of the paternalistic protections: women are now seen as fully autonomous moral agents, meaning they will be legally responsible for endangering the babies they carry, but they will also be punished as autonomous adults . Women thus remain children for the purposes of pregnancy and childbirth, but have become adults for the purposes of criminal liability.

It is easy to fall asleep in the false belief that a return to pre-lifeRoe deer would simply mean that the reproductive freedom movement must redouble its efforts to fund and transport people in need of abortions to more hospitable states. It would be horrible, we think, but maybe not this catastrophically bad. But as Goldberg warned in 2019, “the past may prove insufficient to understand the depredations of the present. In fact, we don’t back down in life before Roe. We are more likely to move sideways in a fundamentalist religious regime in which life pre-Roe deer will become a much less terrifying option than a world in which women are subjected to revengeful religious claims – claims without any support in the Constitution – over the lives they can carry, the unknown crimes they can commit and the crimes they can commit. choices they are no longer allowed to make.


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