‘We are going to be a surveillance state like we’ve never had before’: A reproductive health historian says the stakes will be even higher than pre-Roe

• A reproductive health scholar believes the stakes will be even higher in 2022 if Roe is overturned.
• Dr. Carole Joffe, reproductive health historian, said people were rarely punished for getting an abortion pre-Roe.
• But this time around, if the Supreme Court overturns Roe v. Wade, abortion can and will be criminalized. 

Dr. Carole Joffe worries about a future in which Roe v. Wade is overturned. She worries people will be accused of faking their miscarriages, or abortion seekers will be punished for exercising reproductive freedom. 

On Monday, Roe v. Wade, the 1973 landmark Supreme that legalized abortions nationwide, was thrown into question after Associate Justice Samuel Alito in a leaked draft opinion characterized it as “egregiously wrong from the start.”

Abortion will remain legal in the United States until the court hands down a final decision, which could come as early as June when the bench rules on another abortion case. Still, the draft opinion was enough to put reproductive rights activists and doctors who perform abortions on edge.

If Roe were to be overturned, it would be illegal in 23 states to obtain an abortion. And in several others, there might be added restrictions.

Joffe, a University of California sociologist who studies reproductive health, said she believes people who need and seek an abortion in an age where Roe v. Wade no longer exists will be punished more heavily than pre-Roe. 

Before abortion had been established as a constitutional protection in the US, women who needed one would turn to often dangerous means, Joffe told Insider. There’s the infamous “coat-hanger” method. Joffe said she’s interviewed doctors who’ve told her they’ve had to remove coat hangers from cervices in the years before the 1973 ruling.

Women would also travel to other countries like Japan and Mexico to get an abortion done, as well as as try sitting in hot water to rid a fetus. They found people who told them they’d be willing to perform an abortion in exchange for a fee.

“Women went to very inept abortion providers,” Joffe said. “Some of them doctors. Some of them not doctors. Some of them very unethical. Would demand more money. Some of them were alcoholics.”

Known historically as “back-alley abortions,” these types of procedures were rarely safe for women. But if they wanted an abortion, the only option was to find someone who would perform it under the radar, Joffe said.

Today, Joffe said she doesn’t expect many abortion seekers in the United States to pursue means as drastic. Some teenagers who are afraid to tell their guardians about a pregnancy or don’t have access to an abortion could potentially resort to “coat-hanger means,” Joffe said. But for the most part, Joffe expects there to be avenues still to get an abortion.

If Roe is overturned, it will be up to individual states to create and uphold abortion laws. That means if an abortion seeker is in a state with restrictive reproductive laws, they can often travel to another state to receive a procedure or medication that helps facilitate an abortion.

But traveling out of state to receive reproductive care isn’t an option available for people who may not have the finances or social safety net. Abortion restrictions nationwide have already made it harder for people of color, low-income individuals, trans and nonbinary people, and immigrants to find or receive reproductive care, abortion rights activists argue.

“No surprise, then as now, the most vulnerable where the poorest women,” Joffe said. “Disproportionally women of color.”

If the Supreme Court does in fact overturn the right to an abortion, the difference between pre- and post-Roe, according to Joffe, would be that today, there would be harsh and unprecedented punishments for those who receive one.

Pre-Roe, “abortion was illegal and everybody knew it, but there was no anti-abortion movement to speak of,” Joffe explained. “There was nothing remotely resembling what we have today. So even though it was illegal, there was, relatively speaking, very little conviction of doctors or of anybody who did it.”

US courts frequently regarded women who got abortions as “victims” rather than as accomplices or criminals, according to a 2001 research article that studied abortion from the 1860s to 1970s.

Though they were rarely convicted, women were punished in other ways such as through policing. Officers would sometimes storm the homes of women who received an abortion and question them about where they got it, Joffe said. In some cases, police photographed women and got doctors to perform vaginal examinations in the process of their interrogation and investigation.

Women were also punished by being forced to appear and testify in court, Slate reported. The threat of public humiliation loomed.

While doctors faced the potential for prison time and disbarment, they were infrequently criminalized for performing abortions, Joffe said.

“Relatively speaking, very few doctors were convicted,” she said, adding that it was about “a handful.” 

Today, Joffe warns, some legislation criminalizes both people who get an abortion and perform, marking an entirely different landscape for reproductive rights. Lizelle Herrera, for instance, had been arrested and charged with murder last month in the state of Texas after a self-induced abortion, police said. The charges have since been dropped.

But what happened to Herrera is exactly what makes the potential overturning of Roe v. Wade so scary, Joffe said.

“People were scared” pre-Roe, “but the legal environment was actually not that challenging,” she said. 

“So that is going to be part of the future of the post-Roe era in this country. Much less injury, much, much more legal surveillance,” Joffe added. “We are going to be a surveillance state like we’ve never had before.”