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Opinion: The Supreme Court Can’t Turn Back Time On Abortion Rights, But It Can Do Something Worse

We are not headed backward into the land before Roe v. Wade — we are headed forward into uncharted territory.

Posted on November 30, 2018, at 4:20 p.m. ET

Andrew Caballero-Reynolds / AFP / Getty Images

For the first time since Roe v. Wade was decided in 1973, five justices hostile to reproductive rights sit on the US Supreme Court. And while many have focused on whether or not this new majority will overturn Roe v. Wade, that question is a distraction.

We are not headed backward into the land before Roe — we are headed forward into uncharted territory.

Over the past 25 years, even as Roe v. Wade was upheld, abortion opponents demonstrated that state laws restricting access can be just as effective as an outright ban — so long as the Supreme Court permits infringements on the right to choose. The court’s new right-wing majority can accelerate this process without overturning Roe v. Wade — and potentially avoiding the backlash from a country where the majority of citizens are pro–abortion rights.

A patchwork of state laws would make it seem like access to abortion is tied to geography, but that would be an illusion. People with money, in every state, will always be able to get whatever care they require. This was true before Roe, and it is much more straightforward in today’s world, where air travel is routine and services can be arranged on the internet.

The people quite literally left behind will be an assortment of vulnerable individuals: women lacking money to pay for services out of pocket, working women unable to negotiate an unexplained leave from home or work, women who fear their partners, the very young, the developmentally delayed.

It also means that means that some people will be able to avoid the birth of a child with a genetic disease or disability, and some people will not. Such diseases will become something that happens primarily to certain people in certain places.

Illegal abortions will look very different in the 21st century. Early, uncomplicated abortions will be far easier to obtain than they were years ago because of the option of using a relatively simple medication, mifepristone, to induce abortion during the first 10 weeks of pregnancy. There are dangers associated with clandestine sales of mifepristone, and there will be preventable tragedies as women dose themselves without medical supervision or advice. However, in general, early abortion will not be the ugly, back-alley thing it was in the 1960s.

Late or medically complex abortions, on the other hand, are going to be profoundly affected by changes in the law. These are a small percentage of abortions overall, but they loom large in several ways. As a genetic counselor, I am acutely aware that this category includes women who decide to end their pregnancies for medical reasons, such as severe genetic disease or chromosomal abnormalities in the fetus.

In the years since 1973, genetic testing and ultrasound have become routine parts of prenatal care. Currently, over 90% of pregnant women are offered some form of genetic screening, and most of them choose to test, providing strong evidence that the majority of people want to know if there is reason to be concerned about the health of their fetus.

Most people think of prenatal screening as testing for Down syndrome, because historically that has been our primary target. That’s not because Down syndrome is uniquely serious or disabling — in fact, it’s a mild or moderate condition and many people with Down syndrome have good quality of life. There’s a big group of genetic diseases and conditions that cause more suffering and disability, but individually, each of these is a rare event. Down syndrome is relatively common, so we learned how to test for it.

Until now we have not been able to test for the rarer things, but that is rapidly changing. We are facing these legal challenges at the cusp of a new era, where it is likely that we will be able to identify a range of life-limiting or severely disabling genetic conditions with a simple test.

Not everyone will choose to terminate those pregnancies, but those with access to legal abortion will have that option. The termination of a wanted pregnancy for medical reasons is a painful topic, but polling suggests that most Americans believe women should have that option, and support for abortion increases when it is done for medical reasons. Given that most women choose to test, evidence on the ground suggests that it is an option most people want for themselves.

The anti-abortion movement, on the other hand, has made it clear that it plans to target these abortions specifically. Already, there is a law on the books in North Dakota that forbids physicians to perform any abortion if it is done because “the unborn child has been diagnosed with a genetic abnormality.” Three other states have passed similar laws that were challenged and are not currently in effect.

If termination is available to some women but not others, the growing number of serious genetic diseases and conditions we can identify prenatally will not disappear, but become concentrated among specific groups of people. And because the effects of legal restrictions fall exclusively on the poor and other vulnerable groups, the burden of these genetic diseases will be felt disproportionately by those least able to cope.

Laws like the one in North Dakota are billed as protecting the rights of individuals with genetic diseases and disabilities, but ironically that population may be harmed the most. Diseases or conditions associated with low socioeconomic status are much more likely to be marginalized. Who will lead the charge for research and treatment? Who will raise money for resources and support? And will appeals to empathy succeed when the rest of the population no longer feels some sense of collective risk? Allowing the country to revert back to a patchwork of state laws may make it worse to be a person born with a genetic disease or disability.

Reproductive rights in the United States are not only about the right to personal choice. They are also about fairness and equity, because the effects of laws restricting abortion are so unfair and so unequal. In the 21st century, legislators will be limited in how effectively they can block access to some forms of abortion. But when laws from the past meet the technology of the future, existing disparities may be the literal inheritance of generations to come.


Laura Hercher is director of research at the Sarah Lawrence College Joan H. Marks Graduate Program in Human Genetics, and host of the podcast The Beagle Has Landed.

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