The US Supreme Court struck down Roe v Wade, the landmark 1973 decision that enshrined the legal right to abortion in the United States in federal law, reversing nearly 50 years of precedent and inflaming a sharp ideological divide.
The ruling last week was the result of decades of relentless organising by conservative anti-abortion rights groups in the US, which are now setting their sights on the fight to shape the post-Roe landscape.
In 2020, more than half of US abortions were pill-induced which could complicate conservative efforts to enforce abortion bans.
Abortion pills such as mifepristone and misoprostol will now take centre stage in battles between conservative states seeking to curtail abortion and liberal states fighting to safeguard it.
Anti-abortion rights groups have indicated that they will take an increasingly punitive approach to restrict the availability of abortion pills, going so far as to promote potential prison time for those who share information about their use in states where abortion is banned.
“The harder these bans are to enforce, the stricter the measures anti-abortion groups will ask for,” said Mary Ziegler, a professor of law at the University of California at Davis who has studied the anti-abortion rights movement. “They’ll have to look to more sophisticated surveillance methods to punish those who provide information on medically induced abortions,” she told Al Jazeera.
‘A completely different landscape’
There is little to indicate that a lack of popular support will dissuade such groups from pursuing a maximalist approach to restrictions.
In the conservative state of Texas, a Quinnipac poll found that nearly 80 percent of voters support abortion exceptions for pregnancies resulting from rape or incest. But the state’s automatic ban, which goes into effect 30 days after the decision, does not allow for either exception.
With Roe struck down, anti-abortion rights groups are facing a “completely different landscape” that will give states the ability to “revisit” policies that were not previously possible, Laura Echevarria, a spokesperson for the anti-abortion rights group National Right to Life Committee (NRLC), told Al Jazeera.
The group released a “model law” on June 15 that states could use as a template for their anti-abortion laws in the aftermath of Roe.
A section of that model suggests criminal penalties for those who aid and abet abortion access, which can include anyone who offers advice on how to obtain pills over the “telephone, the internet, or any other medium”.
Complicated jurisdiction
California has declared its intention to become an abortion “sanctuary” and has taken steps to prepare for an influx of people travelling to the state for abortions and protecting providers from efforts by conservative states to penalise them.
The NRLC model law says that meaningful enforcement of abortion bans will require a “much more robust enforcement regime” to counter factors like abortion pills and blue states likely to take steps to protect providers, a coalition of actors the group calls the “illegal abortion industry”.
Elected officials such as district attorneys, who in the US criminal legal system are given substantial flexibility to decide which crimes to focus enforcement efforts on, could also play a role.
On the day that Roe was overturned, the progressive group Fair and Just Prosecution released a statement signed by dozens of prosecutors and DAs across the country pledging that, even in states where abortion is outlawed, they will not focus their prosecution efforts on cases relating to abortion.
That is a strategy that some conservative states and anti-abortion rights groups have anticipated.
Texas is considering legislation that would give DAs the power to prosecute cases in municipalities other than their own, giving conservatives the ability to crack down on areas under the control of more liberal officials who may not prioritise enforcement of abortion bans.
NRLC also identifies prosecutors as an influence to be countered, stating that “radical Democrat prosecutors” may “refuse to enforce pro-life laws post-Roe”, and recommends empowering state attorneys general to prosecute cases that violate abortion bans if local officials will not.
“The anti-abortion movement has become more aligned with a Republican Party that tends to take a harsher approach to law enforcement generally,” said Ziegler. “In states in the south where a lot of these bans are occurring, there’s already a very punitive approach to criminal justice and incarceration. So the approach will reflect that.”
Problems for enforcement
A December 2021 decision by the federal health agency the Food and Drug Administration (FDA) widened access to abortion pills by allowing them to be delivered through the mail.
It was a decision that caused outrage among anti-abortion rights groups such as Students for Life Action, which said in a statement that the FDA had “paved the way for the abortion industry to deliver death by mail”.
Anti-abortion rights groups have consistently sought to portray medically induced abortions as dangerous and unpredictable, but this is not a position rooted in scientific evidence.
Several studies have found that the practice is safe, and various health bodies including the World Health Organization, have said that abortion pills can be safely taken without the presence of a doctor.
Following the Supreme Court’s overturn of Roe, US Attorney General Merrick Garland said that conservative states will not be able to ban abortion medications such as mifepristone “based on disagreement with the FDA’s expert judgement about its safety and efficacy”.
Hey Jane, a telehealth abortion provider, told Al Jazeera in a statement that, “Abortion care via mail is now likely to be the most viable form of access for most of the country.”
Other providers that are based outside the US, such as the group Aid Access, could also pose a challenge to conservatives seeking to penalise providers: it is difficult to see what path is available for cracking down on such groups, which have experience sending the pills to countries where abortion has been illegal for years.
Still, liberal states seeking to protect abortion rights and assist those who travel from red states to seek them out will face challenges of their own, and conservatives have promised to target people who travel to obtain abortions, even in states where they are still legal.
One such challenge will be the increased scale of demand blue states will have to accommodate. The Guttmacher Institute, a pro-abortion rights research group, has estimated that California could become the closest source of abortion care for hundreds of thousands of women. The state’s Governor Gavin Newsom has called for funding to prepare for an “influx of women seeking reproductive healthcare” in California.
Abortion restrictions in red states could evolve over time as conservatives test out various strategies for enforcement. But stopping abortion pills from arriving through the mail could require more invasive steps than anti-abortion rights groups have previously been willing to promote.
Janna Farley, a spokesperson for the South Dakota branch of the American Civil Liberties Union (ACLU), told Al Jazeera she was unsure how conservatives could enforce bans on abortion pills.
“I don’t know what they could do, short of opening people’s mail,” she said.
South Dakota voters twice voted against abortion bans in the early 2000s, including one that included exceptions for rape and incest. A trigger ban that took effect after Roe was overturned does not include such exceptions. “It would seem there’s no appetite among voters for this,” said Farley. “But this is a Republican supermajority state. I don’t think our elected officials care that these policies are unpopular.”
