Should the new abortion laws signed by Gov. Rick Perry of Texas last Thursday, which are expected to close 37 out of 42 abortion clinics through needless red tape, survive a court challenge to go into effect, it will certainly usher in a new era of restrictions on women’s ability to get a safe, legal abortion. Conservative writer Ross Douthat of The New York Times called it the “Texas experiment,” though his reasoning for the term is foggy at best. But he’s not wrong to note that what’s going on in Texas is an experiment. What Rick Perry and the Texas Republicans are trying something unprecedented: seeing if you can end legal abortion without directly banning it.
Outside of the 20-week ban, this new law doesn’t technically restrict a woman’s right to obtain an abortion or force her to give a reason for the abortion, but it makes it so hard to operate a clinic that it will make getting an abortion physically impossible or prohibitively expensive. It will force most women to travel out of state, often across many states, to get to a clinic that has the room to see them, pushing the cost into the thousands of dollars, the opposite of free. The strategy is to take away abortion without banning it, and it’s something that has never really been done before.
Needless to say, the ban-without-banning strategy has its skeptics within the anti-choice movement, many of whom would rather just go with an outright ban and are suspicious that simply ending access will not do enough to drive women away from safe, legal abortions. These detractors tend to support another, competing strategy, backing bills that would ban abortion at six weeks, which is too soon for the vast majority of women to get an abortion. North Dakota went this route, banning abortions at six weeks, and some upstart hardliners in the Texas legislature also introduced a six-week ban after the new law was passed, though the six-week ban is not expected to go very far in the legislature before the session is over.
For the anti-choice perspective, however, the problem with banning abortion, whether from the beginning of pregnancy or at six weeks, is that strategy is almost sure to fail a court test. The Supreme Court is usually loath to outright overturn prior decisions, even Roe v. Wade. A six-week ban is an indisputable violation of Roe and so unlikely to be heard in front of the Supreme Court so much as kicked back to lower courts, which will find it unconstitutional.
But regulating abortion out of existence without banning it directly? That’s something that might actually work on the current Supreme Court. While the court found in the 1992 case Planned Parenthood v. Casey that the state cannot put an undue burden on a woman trying to obtain an abortion, undermining clinics with so many regulations that it’s impossible to follow is largely untested. The only similar case, Gonzales v. Carhart, where the Supreme Court ruled on a federal ban on a specific kind of abortion procedure, went the anti-choice way, suggesting that attacks on providers instead of patients might actually be the key to ending legal abortion in conservative states.
While there’s almost no doubt that a black market in abortion will emerge should states like Texas eliminate or nearly eliminate all their abortion clinics, the fact that abortion isn’t technically banned—just regulated out of existence—might change what that black market looks like. Prior to Roe v. Wade, when abortion was simply banned in most states, there was a thriving black market in abortion that was notable for the professionalism and competence of most people offering illegal abortions. However, under these laws, that sort of access to safe, if illegal abortion, may not return.
Rickie Solinger, historian and author of the new book What Everyone Needs to Know About Reproductive Politics, explains the world of abortion back when it was simply treated like a crime. “Public-health experts agree that before Roe v. Wade, more than 1 million abortions were performed every year in the U.S., maybe as many as 2 million,” which would make the pre-Roe abortion rate the same, if not higher, than it is now. Most of the abortions were done by skilled practitioners—physicians, chiropractors, homeopaths, and others—who knew what they were doing, and the procedures were successful.
None of which discounts reports from doctors in the ’60s who reported seeing patient after patient with mutilated reproductive organs, perforations, bleeding, or infections, but these cases were rarely from the mythical “back-alley abortionist” and more a result of attempts at self-abortion. “These utterly desperate and resourceless girls and women used the knitting needles and the coat hangers and all too often died from perforations and infections,” explains Solinger. Most women who had abortions, however, actually had access to a competent provider who chose to do this illegal work as a form of protest against unfair laws banning abortions. In fact, Dr. George Tiller, who was assassinated by an anti-choice extremist in 2009, decided to become an abortion provider in no small part because his father, who had also been a doctor, had spent years quietly providing illegal abortions rather than see his patients die from self-abortion.
There’s no reason to think that such services will reemerge in places like Texas, no matter how badly women need them, however. It’s one thing to choose to be an illegal abortion provider when abortion is already banned and you know in your heart that you are a patient’s absolute last resort. In theory, women will be able to travel to other states to get safe abortions, which will be enough to convince most doctors that it’s not worth the risk. Unfortunately, that means that the huge numbers of women who can’t make a multiday journey to another state to get an abortion will have no access to safe providers at all. Places like Texas may actually have worse abortion access than they did in the 1960s.
There is one other factor that changes the story, however: the emergence of the abortion pill, RU-486, or the off-label use of an ulcer medication called Cytotec that is known to induce abortion. In the bad old days pre-Roe, getting an abortion meant you absolutely had to have someone—either yourself or, if you were lucky, a practiced abortionist—actually go up into your uterus to remove the pregnancy. Taking a pill that expels it is not only more discreet, it also doesn’t require having the sort of facilities that illegal abortionists used to provide.
For that reason, abortion-inducing pills are already the favored strategy of women seeking underground abortions, whether by buying them in Mexico or off websites. Pills present their own problems, of course, since an incorrect dose can lead to incomplete miscarriage and even infection. Emergency rooms will likely start treating patients who botched self-abortions, something that hasn’t been a problem in 40 years, but at least they won’t be showing up with perforated uteruses. In fact, most of them will be indistinguishable from plain old miscarrying patients and may not even register on the national consciousness as botched, illegal abortions.
Of course, the people who benefit the most at the end of the day from the existence of illegal abortion being concealed from view are the anti-choicers who caused it to happen. The Ross Douthats of the world will write glowing essays about how the ban-without-banning ended abortion (at least for poor women), oblivious to the daily reality of women quietly risking their health by swallowing black-market pills behind closed doors.