If a leaked draft opinion is to be believed, the Supreme Court will imminently overturn one of its precedents: the decision in Roe v. Wade. While Roe has been modified by several subsequent decisions, its essential holding — that procuring an abortion is a Constitutional privacy interest that outweighs the state’s interest in the preservation of the life of an unborn child — has remained intact. With this newest decision, this will no longer be the case. Contrary to a popular political narrative, this will not result in a blanket ban on abortion nationwide. Rather, this will remove the greatest legal impediment to state-by-state restrictions on abortions by no longer recognizing abortion as a constitutionally protected right.
However, it is the case that several states have passed laws designed to provoke a legal challenge to Roe, to circumvent Roe by restricting abortions indirectly, or to immediately be enforceable in the event that Roe is overturned. In many cases, these laws adopt an excessively penal approach to abortion which — while politically advantageous to legislators wanting to demonstrate their commitment to anti-abortion politics — are not designed with the protection of life or the mother in mind. At their worst, they dehumanize the mother in favor of her unborn child. We have already seen the results of such an approach, such as in Alabama, a state which once indicted a woman for being on the receiving end of a shooting that killed her unborn child and prosecuted another woman for taking prescription painkillers while pregnant (thankfully, charges against both were later dropped). Legislators in one such state, Louisiana, have gone so far as to propose a bill that would make procuring an abortion a capital offense, in what can only be described as a cartoonish parody of pro-life politics. In the most extreme cases, you have Ohio encouraging doctors to re-implant an ectopic pregnancy — a procedure which is not currently possible — to avoid charges for murder, and Missouri’s botched attempt to criminalize the ending of ectopic pregnancies.
Collateral consequences for innocent women is an unacceptable price to pay for legal protections of the unborn. If indeed the Supreme Court has re-empowered lawmakers to regulate access to abortion, we need a better path forward. The end of Roe was never the end, but rather the beginning of a serious consideration of what a pro-life politics will look like in action, and we can start with the way we seek to limit abortions. Almost none of these states poised to restrict abortion have effectively demonstrated any preparedness post-Roe legal reality, which makes addressing this shortcoming an urgent priority.
This may necessitate a new paradigm entirely, which exists in the form of restorative justice, a term that was first introduced into criminal justice theory in the 1970s through the work of those such as criminal psychologist Albert Eglash, legal sociologist Nils Christie, and law professor Randy E. Barnett. It is an alternative paradigm responding to the infirmities of traditional, retributive approaches to criminal justice. Restorative justice is conceived as a response to the belief that retributive justice frequently fails to meet the needs of victims, the broader community, and often the offender, that retributive criminal justice frequently fails at meeting its stated goals, and that retributive justice is often alienating to the offender, resulting in permanent dis-integration from their community and sense of self. These problems are even more urgent in the case of abortion, wherein the woman who procures an abortion is usually victim as well as offender. Few people elect to terminate a pregnancy on a whim; the widespread notion that, absent legal restrictions, it would simply be used as a casual form of birth control is out of touch with the reality of how and why abortions are sought. Restorative justice is a broad, flexible approach that accepts varying degrees of co-existence — or none at all — with penal approaches to criminal justice, but any restorative justice measure requires significant community and institutional support in order to be properly implemented, making its implementation a political challenge.
Regardless of method, any attempt to regulate abortions in the aftermath of Roe’s demise needs to carefully balance the humanity of the mother and that of the child. States with trigger laws would do well to carefully review the legislative history and consequences of their acts and eliminate those which are unduly punitive. Legislators looking to pursue new schemes of regulation should proceed deliberately, with their goal being the protection of life rather than victimizing women in order to make a political point. The time is now ripe to pursue a new politics of rehumanization, if only we are willing to do what is necessary.