States can Ban Abortion but They Can’t Stop It
By Ann Furedi, author of The Moral Case for Abortion
The overturning of Roe v. Wade is, without doubt, a victory for the anti-choice movement that undermines the principle of women’s autonomy that the 1973 judgement embraced, and makes it far more difficult for women to manage their lives. This ruling puts women in a position we thought we had left behind: that of victim to our biology, second-class citizens whose equality depends on remaining un-pregnant. That women in supposedly one of the most “developed” nations will be subject to the most backwards of abortion laws in many states is nothing short of preposterous.
However, this is not the end of abortion for American women. Women will fight back and find ways to get around the ruling, just as women always have. You can ban abortion, but you can’t stop abortion. Women will always find a way, whether legally or illegally.
By returning abortion decisions to individual states, the Supreme Court has guaranteed that challenges and changes will be ubiquitous, leading to laws loosened here and tightened there. The end result will be the kind of abortion travel (some it call “reproductive tourism”) that is now common between different countries in Europe. Women in many states have already been travelling distances to abortion clinics that are unimaginable to many Europeans. In a presentation at an international meeting of abortion providers in NYC, I found an audience as amused by my complaint about the distance women had to travel from Ireland to Britain as about my pronunciation of Utah. I failed to see the joke in either. Following Thursday’s ruling, clinics in Texas, a state with over 13 million women, halted abortion services.1 Those wishing to seek an abortion may have to travel at least 10 hours to an out-of-state clinic.2
Travel for abortion is burdensome. It greatly restricts access for those without the means or ability. Yet it is nothing new, nor unusual, in a land with a limited publicly funded healthcare system. Already the existing networks to facilitate interstate abortion access are growing, and activists are securing financial resources and communication platforms to assist those who need it. Women who can travel will find a way to do so along the abortion highways between states and across nations.
And then there is the abortion pill. Try as they might, it is a tough problem for states to shut down access to a medication that is available worldwide. Of course, customs have seized packages and arrested pitiful women reduced to obtaining medication outside the law. But, in the long term, do we really believe that the law enforcement structures that have failed to prevent trade in narcotics will be able to systematically shut down the provision of medications that are safe, the use of which has been legal to date and is still supported by doctors and pharmacists throughout the nation? As Kent law professor Sally Sheldon wrote in Reproductive Health Matters, the State can regulate clinic structures and procedures by healthcare professionals far more easily than it can regulate swallowing3.
The truth is that regardless of how the states regulate, abortion will continue. Pregnancies will be ended by women when abortion is prohibited, just as they were ended before Roe v. Wade. It will be tougher than it was, and toughest for the most disadvantaged, but as I discuss in my new book, we live in a modern society with an expectation that families will be planned, that babies will be wanted and provided for, and that women should be able to control their fertility. The reason why so many governments globally made access to abortion pills easier during the COVID crisis was that they knew abortion was necessary, and the reason why these restrictions were not reimposed after the lockdowns was that they understood that the genius of abortion pills cannot be put back in the bottle.
Thus, abortion will continue to be a part of women’s lives throughout 21st century, just as it was a part of women’s lives before.
The tragedy is this: for almost 50 years a profoundly important principle of privacy was attributed to Constitution of the United States, popularized through the Roe v. Wade Ruling, and now that has fallen. However imperfect that judgement, and whatever one’s preference for democratic law-making at state level over the exercise of judicial power, one statement in that 1973 Roe v. Wade codified an important principle that has bound together one of the most excellent tenets of American life: the belief that the state has limits that do not intrude into personal and family life. Put at its simplest, the 1973 Judgement codified, “this right of privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” 410 U.S., at 153. [my emphasis]. When that principle falls, what goes next?
A right to privacy means a right to a world in which the state has no say – and as increasingly the state intrudes into our lives, we would do well to defend this principle. The fightback against abortion bans is continuing, and it will not cease until abortion is a guaranteed right across the United States and all women have the unrestricted freedom to choose.
Ann Furedi has been a leading global pro-choice advocate for almost 40 years, 17 years as CEO of British Pregnancy Advisory Service. She has written extensively on the ethics of abortion and was awarded an Honorary Doctorate in Social Sciences by the University of Kent in recognition of her contribution.
Klibanoff (2022). “Pandemonium, then silence: Inside a Texas abortion clinic after the fall of Roe” The Texas Tribune. https://www.texastribune.org/2022/06/25/texas-abortion-san-antonio-supreme-court/
 Klibanoff (2022). “With the end of Roe, Texans will have to travel long distances for legal abortions.” The Texas Tribune. https://www.texastribune.org/2022/06/23/supreme-court-abortion-roe-dobbs-texas/
 Sheldon (2016). “How can a state control swallowing? The home use of abortion bills in Ireland.” Reproductive Health Matters, 24(48), 90-101. https://www.tandfonline.com/doi/full/10.1016/j.rhm.2016.10.002
NB: All opinions expressed here are the author’s own and do not represent the views of Palgrave Macmillan.