No One Can ‘Ban’ Abortion. But They Can Make It Unsafe

“Abortion Will be Banned in Arizona after Supreme Court Upholds a 1964 Law”—Arizona Mirror

“Florida Supreme Court allows one of nation’s strictest abortion bans to take effect”—Washington Post

“Egyptian papyrus, Greek plays, Roman coins, the medieval biographies of saints, medical and midwifery manuals, and Victorian newspaper and pamphlets reveal that abortion was more common in premodern times than people might think.” –Wikipedia

The first recorded mention of abortion is in a 3,500-year-old papyrus. The practice of abortion likely is more ancient than even that papyrus. 3,500 years of abortion. And 2024 abortion activists think they will end the practice now? By court decree? State action? Criminalizing women and those who assist them?

Ban abortion? Hardly.

The debate isn’t whether abortion will be abolished. It’s whether abortion will be safe and legal. There has always been abortion. There always will be. 

Consequences of Restricting Legal Abortion

Shut down all legal abortion providers and there will be illegal ones. Stop the sale of legal pill purchases and there will be illegal sales. Predictably, the result will be black markets for medication, less sterile venues for the procedures, fewer trained counselors, higher costs, longer wait times, more risk, increased levels of fear and anxiety for women and girls.

There will still be abortions.

Despite all the legal and emotional obstacles erected by the DeSantis state administration, there were nearly 80,000 abortions in Florida in 2021, the year before the Supreme Court’s Dobbs decision. Who really believes there will be fewer Florida women seeking abortions now that the practice is all but illegal there?

According to the World Health Organization, restricting access to abortions does not reduce the number of abortions but does affect whether the abortions that women and girls attain are safe. The proportion of unsafe abortions is significantly higher in countries with highly restrictive abortion laws than in countries with less restrictive laws.

Worldwide, unsafe abortion is one of the leading causes of maternal death, and the only one that’s preventable.  The World Health Organization says lack of access to safe, timely, affordable and legal abortion care is a critical health issue. According to the data, 45% of all abortions are unsafe, most of those in countries that either try to ban abortion or fail to properly regulate it or provide commonly available services.

Will the U.S. become one of those countries?

Future Legal Implications

Those who would gain power in a future Trump administration already have announced their intention to do nationally what the Arizona Supreme Court just did locally—impose a total ban on abortion by resurrecting a long-dormant legislative act. 

In 1873, Congress passed what’s known as the Comstock Act, a law that banned using the U.S. Post Office or other common carriers, such as UPS or FedEx, from shipping any article or thing “intended for the prevention of conception or procuring of abortion.” Since surgical gloves, medical instruments and other things used in a doctor’s office and dispensed in pharmacies can be used for abortions, enforcement of the Comstock Act would effectively make abortion illegal everywhere in the U.S.

For more than 100 years, the Comstock Act has been interpreted by the courts as applying only when those shipments were for intentionally illegal purposes.

But now, anti-abortion litigators have invoked the Comstock Act as a reason to ban mail order mifepristone and other abortion-induced drugs. A Trump Justice Department could readily agree with that position without congressional action and criminally prosecute the shipping of drugs or anything else that can produce an abortion. 

That’s not an idle threat.

Enforcement of Old Laws

The Heritage Foundation’s Project 2025, seen as the playbook for a Trump administration,  puts enforcement of the Comstock Act front and center. The right-wing National Review writes that “now that Roe has been overruled, surely the Department of Justice will enforce these provisions.”

Since most seeking abortion in the U.S. are from lower income groups who cannot afford to cross the border to more welcoming venues, that would virtually end the practice in the U.S. Right?

Not in 3,500 years. In many of those years the penalties for abortion were death, disfigurement, public humiliation and worse. For health and other reasons, for 3,500 years women and girls have sought abortions, men have insisted on them, even miscarriages have been harshly punished. 

The only real variable has been safety. Abortion is one of the safest medical procedures there is, if performed by those who know how, in places conducive to women’s safety. 

That’s the real debate. Safe or unsafe. No one will successfully “ban” abortion. They never have.

Comments? Criticism? Contact Joe Rothstein at jrothstein@rothstein.net