roe vs. wade animation
A timeline leading to Roe v. Wade
01:36 - Source: CNN

Editor’s Note: Mary Ziegler is a law professor at Florida State University College of Law and author of Abortion and the Law in America: Roe v. Wade to the Present. Follow her @maryrziegler. The opinions expressed here are those of the author. View more opinion on CNN.

CNN  — 

This week, Arkansas passed one of the nation’s most sweeping abortion bans to date, criminalizing any procedure unless a patient’s life is at risk. But the sweep of Arkansas’s proposal, which very consciously includes a ban for cases of rape and incest, isn’t the only thing that stands out. Quite simply, Arkansas’s latest abortion ban isn’t just a law. It’s a letter to the Supreme Court’s conservative six -justice majority – and a preview of the case against Roe v. Wade.

Mary Ziegler

Like many recent restrictive state laws opposed to abortion, the Arkansas measure compares abortion to both slavery and segregation. The state asserts that Roe denied fetal personhood just as slavery denied the personhood of Black Americans. Indeed, in Dred Scott v. Sandford, the Supreme Court held that people of African descent could never be citizens or have any rights. Arkansas is telling the Supreme Court that Roe is the next Dred Scott.

And the state says that Roe sanctioned the equivalent of Jim Crow segregation by withdrawing “legal protection” for fetal life. Arkansas would certainly know something about segregation. The state long enforced strict segregation laws and was home to one of the most gruesome race-based massacres of the Jim Crow era. The legacy of those years is still very much present in the state: Black children are twice as likely as White children to live below the poverty line, and Black men are incarcerated at disproportionately high rates. With all of that history in mind, these lawmakers still put abortion on the level of slavery and segregation, and to them, Roe v. Wade is at the root of it all.

For the most part, though, Arkansas’ case against Roe is not about fetal rights. It’s about Republican lawmakers’ fixation on the Supreme Court.

The architects of the Arkansas law clearly hope the court will believe that the world has changed since Roe came down. Now, the state argues, pregnant people “who do not want to care for a child” do not have to worry. The United States has a “culture of adoption,” with families eager to care for any child. Safe haven laws – which make it legal to leave an infant with certain registered persons – go a step further to “eliminate all burden of child care.” The reality, of course, is much messier. It may not be easy for some people to give up a child for adoption or take advantage of a Safe Haven law. And arguing that women don’t need to care for children anymore rings particularly false during the Covid-19 pandemic, which has forced millions of women out of the workforce precisely because they are the ones who still disproportionately care for children.

Just as importantly, the Arkansas law says nothing about pregnancy itself – or maternal mortality. Roe and the cases following it focused partly on the risks of pregnancy. Arkansas has one of the nation’s highest maternal mortality rates, and the numbers for Black women in the state are particularly dismal. To its credit, Arkansas knows it has a problem – so much so that it recently passed a law intended to uncover why so many pregnant people in the state are dying.

Perhaps to respond to this likely criticism, the Arkansas abortion ban touts biased arguments about “the massive harm that abortion causes to women.” State lawmakers don’t spell out those injuries in the text, but we don’t need to look far to figure what they mean. Antiabortion think tanks have published studies arguing that abortion increases the risk of everything from post-traumatic stress to depression, infertility and cancer. Antiabortion groups insist that access to abortion doesn’t help women achieve equal citizenship; it makes them sick.

These groups have spent years making the case that abortion is bad for women. Arkansas lawmakers are clearly not trying as hard. The state nods with one sentence toward the effects of abortion on patients. That’s a further indication that this law is really about convincing six people on the Supreme Court.

Ultimately, the Arkansas law’s central argument is not just that Roe was discriminatory or wrong. It’s also that Roe (and legal abortion) remain controversial. Abortion foes have made this claim central to the quest to undo abortion rights.

The drafters of this law are right that academics and judges have long felt that Roe is not the most convincing decision. Even the late Ruth Bader Ginsburg said as much. But the Arkansas law also stresses that Roe is politically divisive. According to Arkansas (and many abortion foes), the fact that there is an antiabortion movement – or that politicians in red states seek to criminalize the procedure – suggests that Roe is not “accepted.” And by extension, this law insists that any decision that is not accepted should be revisited.

Of course, it can’t be that simple. Many Americans don’t “accept” the Supreme Court’s decisions on guns, campaign finance or voting rights. It’s hard to imagine Arkansas passing a law specifically geared toward getting the Supreme Court to rethink all those decisions.

It seems as if Arkansas lawmakers have focused so much on the Supreme Court that they have lost sight of what comes in the meantime, after they’ve sent their message to the nation’s highest court. Passing an abortion ban is one thing. Enforcing one is another. Both in Arkansas and across the country, the abortion rate for people of color is disproportionately high partly, no doubt because of the racism and limited opportunities facing some who might prefer to bring pregnancies to term.

Eliminating legal abortion would not obviously change demand for the procedure. The availability of medication for abortion, rather than an in-person procedure, will make state laws even harder to enforce. The Supreme Court at most will allow states to ban abortion, not require them to do so. And the justices can’t stop anyone from trying to get an abortion elsewhere, whatever the law says.

None of that might bother lawmakers in Arkansas. Like many in the antiabortion movement, the authors of this law seem to believe that the Supreme Court can fundamentally transform our wars about abortion – or even end them altogether.

The irony is that abortion foes have seen this movie before. More than anyone, those in the antiabortion movement should know that obsessing over the Supreme Court can get you only so far. After all, way back in 1973, Justice Harry Blackmun issued a decision he firmly believed would end conflicts about abortion. That decision was called Roe v. Wade.