Ending Roe Threatens More Than Abortion Rights
Plus: Lawsuit against Twitter can move forward, antitrust bills targeting Big Tech falter, and more...
In discourse about Roe v. Wade being overturned and states severely restricting or limiting abortions, much of the discussion is (rightly) focused on the potential fallout for those with unwanted or unsustainable pregnancies. It's girls and women of childbearing age on whom such prohibitions would fall the hardest, or at least the most directly. But banning abortion would bring many second-order effects that merit consideration, too. Some children, families, and medical professionals may suffer grave consequences. We're also likely to see a drastically expanded state. Today I want to devote a little attention to some of these often-overlooked consequences.
Banning Abortion Would Be Bad for Kids
Opponents of abortion often say "just put the baby up for adoption!" as if carrying that baby for nine or so months beforehand isn't a major endeavor in the best of circumstances and, often, dangerous or damaging to a woman's health. But women aren't the only ones who suffer from forced pregnancies. People who don't want to be pregnant aren't always capable of or willing to provide a healthy gestational environment—and that could be terrible for the children they eventually give birth to.
Sometimes women abort because it is the more compassionate option. They know that alcoholism, addiction issues, mental health problems, or other circumstances will prevent them from adequately nourishing a fetus or protecting it from harm during gestation. While many things pregnant women are warned against (lunchmeat, caffeine, even marijuana) may do less damage than many assume, there are behaviors—like excessive alcohol consumption during pregnancy—that can have serious negative consequences for a developing fetus. A lack of prenatal care or vitamins such as folic acid could also cause major problems.
If abortion is banned, we would likely start to see a lot more children born with severe birth defects and developmental issues. Some may say, "Hey, they were born, that's all that matters." But is setting up a person for a lifetime of suffering really a moral or humane choice? Ethicists have long debated this, and there is no easy answer. (And, unfortunately, finding people to adopt special needs children can be challenging.)
Forcing women to give birth could also be detrimental to the existing children of those women. A lot of women who get abortions are already mothers. They may choose abortion because they don't have the resources—financial, emotional, or otherwise—to care for yet another child. Forcing them to do so could negatively impact the children and families they already have.
Banning Abortion Would Be Bad for All Pregnant Women and Their Doctors
Abortion being banned (or severely limited) would create many new opportunities for growing the state and invading people's privacy. This would fall not just on women who want abortions, but on all pregnant women and their health care providers.
An abortion ban could incentivize closer monitoring and regulation of all gynecologists, obstetricians, and women's health clinics. And doctors who treat women who miscarry may find themselves under increasingly burdensome regulatory requirements and even subject to investigations
Meanwhile, women who experience a miscarriage—a medical term for which is spontaneous abortion—could find themselves facing heightened hostility and suspicion at a time when they most need compassion and sympathy.
Even with abortion legal, we've seen some states investigating, prosecuting, and imprisoning women they blame for their miscarriages. (In Texas, a woman was recently jailed for two nights following a miscarriage after reportedly confiding in hospital staff that she had tried in some way to induce the miscarriage.) This may only get worse if abortion is banned and state authorities are on the lookout for people who secretly self-induce abortion and claim it was a spontaneous miscarriage.
Louisiana is already advancing legislation that would classify abortion as homicide. If passed, would the bodies of women who miscarry with no discernible cause be treated like a crime scene?
HB813 by @McCormick4LA to make abortion a crime of homicide in Louisiana regardless of U.S. Supreme Court decision being debated now in House Criminal Justice #lagov #lalege
— Greg Hilburn (@GregHilburn1) May 4, 2022
Pregnant women across the board could find themselves under increasing scrutiny and restrictions when abortion is banned.
If the state defines a zygote/fetus as a full person from conception, it follows that anything risky a pregnant woman does may be considered child endangerment and, if those risky activities lead to miscarriage, perhaps manslaughter. We could see new restrictions on what pregnant women in general are permitted to do. And we may see more criminal prosecutions of people who do things that could endanger a fetus, even if no actual harm is done or even if they don't know they're pregnant.
This is already the case in Alabama, where pregnant women are regularly prosecuted for "chemical endangerment of a child" for taking illegal drugs during pregnancy. This occurs even in cases where the drug is only marijuana (which an increasing number of women may be using) and/or there's no discernible harm done to the fetus.
And with abortion still legal in some states, and abortion-inducing drugs able to clandestinely induce abortions at home, states with bans could lead to increasingly invasive measures to ensure pregnant women aren't obtaining abortions.
Banning Abortion Would Grow the Government
Abortion being banned could also affect society more broadly. We've already discussed some ways it could lead to a more invasive criminal justice system and less medical privacy. We could also face heightened surveillance and enhanced government power in a number of other ways.
It's unlikely that conservative lawmakers and activists would be content simply to ban abortion pills and procedures within their own state borders. If a national ban isn't possible (and it isn't, at least at the moment), they could increasingly set about trying to prevent women from leaving the state for abortions or obtaining and using drugs that would induce an abortion privately.
The abortion-inducing drugs mifepristone and misoprostol now account for more than half of all U.S. abortions, and they are available to be prescribed via telemedicine and sent in the mail. There are also websites abroad on which they can be purchased without a prescription, and if abortion is banned, other black-market avenues for these drugs could spring up. This means we could face a new war on abortion-inducing drugs (in addition to severe charges for women who take these drugs without a prescription).
This could take many forms, including increasing inspections or regulations for pharmaceutical companies, telemedicine services, and the mail. We could see raids on places thought to be harboring or distributing abortion-inducing drugs. We could see civil lawsuits brought by state attorneys general against anyone making or prescribing these pills. We could see attempts to make these drugs harder to get at the national level, using that all-purpose Commerce Clause, and attempts to go after anyone who brings or sends them across state lines. We could see attempts to prosecute people who provide instructions on making abortion pills. One thing is for sure: As with the drug war more generally, a war on abortion pills would have repercussions far beyond the realm of abortion.
We're also starting to see states ban or attempt to ban "aiding and abetting" an abortion, which could mean police investigating and the state prosecuting people who help women obtain an abortion in any way (including by traveling to another state to obtain one legally). The Texas law to this effect only applies to aiding and abetting illegal abortions within Texas, but a Missouri lawmaker recently introduced a measure to ban aiding or abetting abortions forbidden in Missouri even if these procedures are performed out of state.
Banning Abortion Would Encourage Censorship
Attempts to stop people from helping women get abortion pills or travel out of state for abortions could also lead to more surveillance of private communications, more surveillance of online forums, and more attempts to regulate or censor speech. We could see a plethora of lawsuits concerning advertisements for abortion funds (which, among other things, help women travel to obtain abortions), internet forums that allow them to promote their services, or information on how to self-induce an abortion.
The First Amendment and Section 230 of federal communications law should prevent websites from being liable for users posting information about how to obtain an abortion in violation of a state's law or how to travel out of state for an abortion. But these things also shield websites from being punished for sex worker advertisements, for instance, and we've still seen countless attempts to punish them for that. So it seems pretty clear we could see attempts to shut down or sanction forums for abortion advertising and information, as well as more impetus at the national level to abolish or amend Section 230.
Banning Abortion Would Mean Less Freedom in Other Realms, Too
Not long after Texas passed a law allowing private citizens to sue for damages over suspected abortions, California Democrats started tossing around the prospect of doing the same for guns. It's a good reminder that any legal formulations used to justify or enforce abortion bans could be used to justify or enforce other bans or regulations, too. Guns seem to be an especially ripe area for this transference, as do areas concerning health freedom.
Overturning Roe Would Mean New Avenues for Political Fighting
There's some hope that if Roe v. Wade is overturned and the legality of abortion is left up to individual states, we could see a kinder, gentler national politics. There might be less contentious battles over Supreme Court justices and less pressure to elect a president based on his or her potential to appoint pro-life or pro-choice justices. But the Supreme Court (and other federal courts) are still going to have a huge role in determining the parameters of state rules around abortion. At the same time, the fight to control Congress and build a stronger and stronger majority therein may also grow more intense since, without Roe, Congress could theoretically pass a law legalizing or banning abortion across the land. The idea that anything about U.S. politics would get less volatile, extreme, or partisan in the wake of Roe being overturned seems like wishful thinking.
FREE MINDS
Lawsuit against Twitter can proceed. A federal judge has dismissed free speech claims against Twitter brought by writer Alex Berenson, who alleged in a lawsuit that Twitter had violated his First Amendment rights by kicking him off the platform over his comments about COVID-19 vaccines. U.S. District Judge William Alsup noted that Berenson's claim to that effect is barred by Section 230 of federal communications law. (Also, Twitter isn't the government, so it can't violate anyone's First Amendment rights.) But Twitter may have violated its contract with users, said Alsup, and thus Berenson's lawsuit may continue. "Alsup focused his ruling on Berenson's allegations that the company changed the ground rules on the content Twitter would allow on its platform, despite assurances from an executive that his posts weren't up for censorship," reports Politico.
FREE MARKETS
Antitrust reform efforts faltering? In 2021 and early 2022, antitrust law captivated Congress, with members from the left and right pushing for a variety of (largely ridiculous) reforms. Some of these were more general, but the bulk were aimed squarely at Big Tech companies. But despite the high profile push from some of Congress' biggest names, these bills have failed to really go anywhere yet, thank goodness. Now, time may be running out, suggest Axios tech reporters Margaret Harding McGill and Ashley Gold:
The next couple of months will be do-or-die for backers of the tech antitrust bills. If lawmakers don't approve them ahead of Congress' August recess, insiders say the outlook is bleak as midterm elections loom.
- High-profile issues like abortion rights, inflation and the war in Ukraine are filling up lawmakers' time.
What they're saying: "There's a natural timeline. Once the summer break happens, it's going to be harder to get people focused on big issues," Rep. David Cicilline (D-R.I.), who has led the House's tech antitrust efforts, told Axios.
McGill and Gold note that two bills—the American Innovation and Choice Online Act and the Open App Markets Act—"received bipartisan support when they were approved by the Senate Judiciary Committee earlier this year, setting them up for possible floor votes." Yet neither bill has advanced since early February.
QUICK HITS
NEW: President Biden Announces Karine Jean-Pierre as White House Press Secretary
Anita Dunn will return as a Senior Advisor pic.twitter.com/koNI0vjoZI
— Chris Cioffi (@ReporterCioffi) May 5, 2022
• Canadian Parliament member Arnold Viersen has reintroduced a measure that would require porn producers and distributors (i.e., any website where adult content appears online, including social media platforms like Twitter) "to verify the age and consent of each person depicted," as Viersen described it.
• Was censorship the greatest COVID-related threat to freedom? Leaders in both authoritarian and democratic countries "were frequently tempted to address 'fake news' about the pandemic through state pressure, if not outright coercion," notes Jacob Sullum in a review of The Infodemic: How Censorship and Lies Made the World Sicker and Less Free.
• Body cam footage worn by a Warren County, Virginia, cop "appears to show that sheriff's deputies lied about the circumstances of a traffic stop in which a 77-year-old man suffered a brain injury and later died," reports Raw Story. "The county Sheriff's Office originally said that Ralph Ennis fell over the trailer hitch of his red pickup truck and struck his head on the camper top attached to his truck." But the footage shows "deputies rushed the man in the parking lot of a 7-Eleven near Front Royal, VA, and then slammed him face-forward into the back of his truck and tackled him to the ground."
• The Oklahoma Board of Elections says state Rep. Sean Roberts—now running for Oklahoma labor commissioner—can't appear on the ballot as "The Patriot."
• "A new Florida law would erode students' fundamental right to learn history accurately," suggest American Civil Liberties Union (ACLU) of Florida Political Director Kirk Bailey and Communications Strategist Zuri Davis (formerly of Reason).
• Sigh:
NEW: Mark Esper recounts Trump asking the stunned SecDef if the government could fire missiles into Mexico and then pretend it wasn't the US who did it in his new memoir https://t.co/eINzwh4gI4
— Maggie Haberman (@maggieNYT) May 5, 2022