The Supreme Court has sent a message: We’re no longer in the business of ratifying social change. No more legislating from the bench. If Americans want abortion, same-sex marriage and contraception legalized as opposed to merely tolerated, they should look to Congress.
Distraught over the overturning of Roe v. Wade, many women are searching for a quick fix — and they’re right. A 20,000-abortion-per-week nation can’t go to 10,000 overnight without dire social, economic and medical consequences. But the system won’t give us the rapid remedy we need.
Women will have to die.
Congress won’t help. Bless her heart, Sen. Elizabeth Warren articulated the Democrats’ plan, which is magical thinking at its finest: “If we pick up two more senators (in November), we can ditch the filibuster and make Roe the law of the land.” Odds of Democrats losing seats and Senate control are solid; odds that they’ll gain two or more seats are slim to none.
Neither will the Supreme Court. Only one justice, Clarence Thomas, is likely to die in the next year or two. He’s 74, overweight and rumored to be in poor health. Even if Senate Minority Leader Mitch McConnell allowed Biden to hold a vote and the president were to replace Thomas with a liberal, the conservative majority would remain five to four. Adding new (liberal) justices to the Supreme Court is a pipe dream that would require a 60-vote Democratic supermajority, not to mention changing Biden’s mind about packing the court.
We the people won’t act, either. Now that Roe is no more, look at what has happened in the streets: nothing, unless you count a few sporadic, easily ignored, low-attendance protest demonstrations. Abortion-rights groups like NARAL are still fundraising, not mass-mobilizing.
Want abortion back? Women are going to have to die hard, ugly, public deaths.
A 2021 study estimates that 140 additional women will die each year in the U.S. due to complications from pregnancies that otherwise would have been terminated in abortions.
Vaguely and carelessly written statutes allowing for abortions in case of medical emergencies will kill even more. Women with heart conditions and diabetes are at higher risk of death during childbirth, but what level of risk rises to an emergency? Who makes the call, a doctor or a judge? How many doctors will take the safest course — for themselves — and refuse to perform a needed abortion? Some abortion bans are so sweeping that the procedure isn’t permitted even in case of a miscarriage, which can lead to fatal sepsis unless the fetus is removed.
“What does the risk of death have to be, and how imminent must it be?” University of Michigan reproductive health professor Lisa Harris asked in The New England Journal of Medicine. “Might abortion be permissible in a patient with pulmonary hypertension, for whom we cite a 30-to-50% chance of dying with ongoing pregnancy? Or must it be 100%?” Doctors in states where abortion is now illegal will probably “wait to that very last minute when it’s clear that a patient will die to do the procedure, and that’s just not an ideal time to do any kind of intervention,” Harris said.
Pathetic and absurd and wrong, yet plainly true, is that the quickest and likeliest route toward codifying abortion rights into federal law will begin with one, or more likely several, highly publicized cases of women who suffer hideous deaths because Roe is no more. If enough of those tragedies go viral on social media, there may eventually be enough horror and outrage across the political spectrum to persuade some Republicans to join Democrats into passing an abortion-rights law.
This, of course, is no guarantee. Many thousands of innocents have been slaughtered in mass shootings, all caught in gruesome high-definition video and spread via social media, yet Congress has barely begun to act on gun control measures. Cops routinely murder Black men on video yet the police remain woefully undefunded. Women’s deaths may be like that, piling up with nary a “thought and prayer” for a generation or more until the United States rejoins the developed world and restores Roe.
Without the Supreme Court, a functional Congress or sustained, energetic grassroots activism, however, outrage prompted by social media and high-profile martyrs are all we can hope for under this current system.
Ted Rall (Twitter: @tedrall), the political cartoonist, columnist and graphic novelist, is the author of a new graphic novel about a journalist gone bad, “The Stringer.”