Arizona’s Atrocious Abortion Law Is Just the Latest Example of What Roe Didn’t Protect

When Arizona’s conservative Supreme Court reinstated its near-total abortion ban, breathing life into a long-dormant 1864 law that punishes providers with felony convictions and prison time, the twin responses were largely political in nature. The first was the predictable exulting that this would really piss women off in ways that would help goose turnout in the 2024 election and maybe even hurt Donald Trump’s presidential bid, never mind all the women who might be harmed in the meantime (the ban makes no exceptions beyond procedures necessary to save a mother’s life, and we’ve seen how that’s gone in the rest of the country). The second was conservative men trying to explain that functionally ending abortion care for the entire state of Arizona wouldn’t be all that bad; after all, how much will a bus ticket across state lines set you back, anyway?

These two reactions capture everything that is most pernicious about the ways in which women and their freedom get framed in conversations about reproductive rights and justice: This odd, contradictory conviction that women don’t really matter enough to be treated as adult moral actors in their own right, but also that women can be relied upon to organize, gather signatures, show up at the polls, and fix democracy and save us all, because that is what women unfailingly do. Both versions posit women and pregnant people as more or less the scullery maids of constitutional democracy, willing to do all the work, but never quite managing to gain all the autonomy and dignity that doing all the work ought to bring with it.

As was the case after Dobbs, the shock for most American women came with integrating this fundamental truth: No matter what the law says, you’re not equal. In fact, you never were equal; vast swaths of legislators, jurists, and litigators are hellbent on launching you into a constitutional time machine that brings you back to the Victorian era, and they have a very specific plan to effectuate that. The Arizona abortion ruling resuscitates a zombie law from 1864. Alabama’s IVF decision was tethered in its Wrongful Death of a Minor Act which dates back to 1872. The Comstock Act dates back to 1873. It is simply the case that for a whole lot of emboldened lawyers and legislators, the end of Roe means a reversion to the abortion landscape of the Civil War era.

Further, this deranged project sweeps in IVF and birth control and no-fault divorce and single motherhood and Title IX. This is an “ambitious” project mostly insofar as women in 2024 still cannot imagine it to be real. But real it surely is. As the geniuses behind Project 2025 put it, in print, for all to see, their notion of liberty holds that: “An individual must be free to live as his Creator ordained—to flourish. Our Constitution grants each of us the liberty to do not what we want, but what we ought. This pursuit of the good life is found primarily in family—marriage, children, Thanksgiving dinners, and the like.” It is, in other words, shocking but not surprising, and in fact, women who find themselves surprised by this rapid U-turn into a time in which women were first and foremost property and incubators and also unpaid chefs have failed to fully understand what Roe v. Wade did and did not accomplish.

Roe v. Wade did not make American women equal to American men. It arrived in the slipstream of a centurieslong legal tradition that set forth the law as a series of arrangements that ensured that men could “protect” women by deciding such things as: they could not work in bars, they could not inherit, or use credit cards, or practice medicine. Men could lawfully beat their wives in this country for longer than they couldn’t, because it was a useful mechanism to correct them, or “help them make better choices.” The Roe opinion quite famously mentioned the word “physician” 48 times and “woman” only 44 times. Roe simply reallocated the authority to take care of women from men to their physicians. Planned Parenthood v. Casey did the same—and that decision upheld rules that required informed consent, a 24-hour waiting period, and parental consent. The court may have shuffled the deck and come up with new theories for who could help women make better choices—but it certainly wasn’t predicated in equal rights or unequal burdens. The cases that followed enshrined the same thinking; that women couldn’t be trusted to make their own choices. Remember Justice Anthony Kennedy, in 2007, famously writing for the court that “It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.” This is not the stuff of equality, or agency or respect.

The category error that led most of us to believe that the protections of Roe were somehow immutable lay in the massive mistake we made believing that Roe and its progeny conferred rights on pregnant people. It did not—it simply reallocated the decisionmaking about who got to tell women what to do from one place to another. Even as Roe was good law, an entire generation of TRAP laws—Targeted Regulation of Abortion Providers—dictated the conditions under which clinics could offer care (Now with wider hallways! Now with better ventilation! This is all to protect women!). Even as Roe was good law, physicians still had to read scripts that were full of false information. Even as Roe was good law, “sidewalk counselors” and crisis pregnancy centers had rights to keep telling women they should not get to decide what they do with their own bodies. Physicians had rights. States had rights. Protestors had rights. Women had whatever was left over after all that large-scale apportionment of how everyone else’s rights played out.

Seen now, in the rearview mirror, of course the speculative claims of physicians who will likely never be called upon to perform an abortion themselves still weigh more in the eyes of a court than the rights of the literal woman who is in peril of organ damage and loss of life. Seen now, in the rearview mirror, of course the Alabama Supreme Court’s solicitude for “extrauterine children” would trump its concern for their extrauterine mothers. The world, post-Dobbs, has been so quick to reinstate a legal universe of women as incubators with circumscribed choices because that universe never really went away. It’s why doing away with the law post-1973 hurtles us all the way back to the law of the 1880s.

This is the kind of constitutional rope-a-dopey whiplash that puts women in a persistent state of shock and awe at every successive gut punch that comes with the daily news. For so many of us, we still can’t quite believe what is happening to women’s bodies—the incarceration, violence, forcible interstate travel, arrest, harassment, surveillance, even death. But it is happening—in part because what we saw as freedom and equality and dignity was always more a hope we’d imported into Roe than the reality. The women in this country have endured an unending line of doctrine that arranged and rearranged and then rearranged again the locus of reproductive decisionmaking from one entity that thought women were dumb dolls to another. That the final blow to what was left of Roe came from Donald Trump, who genuinely believes, in his bloodstream and DNA, that women are dumb dolls, is particularly rich. But there we are.

The good news, as the “Arizona huzzah!” headlines suggest, is that, now quoting Justice Samuel Alito in Dobbs, “women are not without electoral or political power.” Which means that even as they struggle to integrate one gut punch after another, they’re still out there gathering signatures, and winning elected office, and campaigning for everyone who is working to restore (and create) these rights. They are, just generally, doing just a crap-ton of democracy work, the type of work that should bring us meaningful and enduring equality, even though we’ve never quite gotten there before. Maybe the very best that can be said about the painful wake-up call that is Texas, Florida, Alabama, Comstock, and the bizarre longing for a time that looks like 1880 is that it’s a useful reminder that history predicts everything that follows. History is never quite as dead as we like to believe. It’s also a vital reminder that given the chance to treat women as fully realized moral actors, there’s still a long, long way to go.