the system

How Democrats Bolstered the Post-Roe Enforcement Regime

Photo: Chris Hondros/Getty Images

Back in May, when Justice Samuel Alito’s leaked opinion draft confirmed that Roe v. Wade was on its last legs, a fundraising video from 2020 titled Traffic Stop started to recirculate on social media. The one-minute short depicts a mother and her teenage daughter being pulled over by the cops. After a brief interrogation, it is revealed that the girl is pregnant and seeking an out-of-state abortion, which leads the officers to drag her screaming out of the car.

In real life, the impending crackdown on abortion will probably involve more snitching and surveillance than militarized border checkpoints. People looking to terminate their pregnancies will be suspected of crimes, while providers, for now, will bear the brunt of the legal consequences. The liberal PAC MeidasTouch, which made the video, seemed more interested in scaring up money for Democrats than in giving its audience an accurate forecast. But its fantasy of our post-Roe dystopia gets one thing right: Wherever abortion is criminalized, there will be an army of law-enforcement officials waiting to punish it.

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has given states the green light to make abortion a crime at a time when Democratic leaders are scrambling to prove their tough-on-crime credentials. By throwing money at the police to boost its election odds, the party has all but ensured that red-state cops will be better equipped to enforce the looming regime — a civil-rights disaster the party’s constituents were counting on it to prevent.

This dire predicament is a result of Democrats wanting it both ways: to be seen as the party of democracy and civil rights and as that of bigger and tougher policing. As Dobbs shows, it’s always the former part of the ledger that is vulnerable to compromise.

The summer of 2020 now feels like ancient history. In response to the killing of George Floyd and what was likely the biggest protest movement in U.S. history, Democrats seemed poised to rein in the cops and shore up civil rights. They made extravagant shows of mourning for Floyd, donning kente stoles and kneeling on the Capitol floor. But their plans fizzled after the 2020 election, which left the party with a razor-thin majority in the Senate, allowing rogue congressional Democrats and concerns about inflation to stall much of President Biden’s agenda.

Party moderates laid their troubles at the feet of progressive activists who called for less spending on cops. To “save lives, we should not defund — instead, we must invest to protect,” 19 lawmakers wrote in a May 6 letter to House Speaker Nancy Pelosi, even though Congress had just set aside $3.9 billion for law-enforcement grants in its 2022 government funding package — $500 million more than the year before. Biden tried to outflank the right by promising to spend more on them, urging local governments to use funds from his $1.9 trillion COVID-relief bill to fill police coffers. “Spend this money now,” the president begged officials this May. The White House estimates that last year at least 300 localities and more than half of U.S. states allocated $6.5 billion in federal money for “public safety.”

A lot of this was surely meant to be theater, a reflexive bid to save face ahead of the 2022 midterms. But Republicans have been wildly successful in seizing control of the U.S. legal apparatus and molding its agenda to their will, from the Supreme Court down to state and local prosecutors’ offices. And we do not have to guess how they will use their replenished arsenal.

The GOP has hardly been shy about its plan to institute its new anti-abortion regime. Thirteen Republican-controlled state legislatures had trigger laws in place to implement bans or tighter restrictions after the Dobbs ruling was handed down. Some providers had to send patients home from their waiting rooms for fear of being arrested. The Louisiana House of Representatives flirted with a bill that would have reclassified abortion as a type of homicide. Sixty-five members voted to amend it to make it less harsh; a stunning 26 did not.

The Supreme Court has punted the logistics of its decision down to the states. The details will be handled by a patchwork of local enforcement philosophies, the most forgiving of which are not sustainable. Dozens of blue-city prosecutors promised in June not to uphold laws criminalizing abortion, in effect signaling to local cops that arresting transgressors would not be worth their while. The move led Vox to declare that “district attorneys could be a last defense” against the wave of bans. But their recalcitrance is poor consolation when Republican attorneys general may be able to simply override their decisions and when prosecutors in less punitive neighboring states, where people might flee to get abortions, still relish playing tough. Indiana’s attorney general, for example, did a media blitz in which he suggested he might prosecute a doctor who performed an abortion on a 10-year-old rape victim from Ohio, though the doctor had not broken any laws. The DA’s office of Texas’s Tarrant County, home to more than 2 million people, tweeted ominously in response to the Court’s decision: “We followed Roe v. Wade when it was the law and we will follow Texas state law now.”

Dobbs is a reminder that what constitutes a crime is frequently arbitrary. If the right powerful people wish it so, there are few limits to what you can be charged with. There are doctors in Louisiana, Kentucky, and South Dakota who woke up on the morning of June 24 with jobs that were legal; that evening, those jobs could land them in prison. Their reality complicates the very notion of a crime wave: The Court’s decision — which will not actually end abortion — practically guarantees such a wave and, with it, a whole new class of criminals.

A lot of this was predictable, which makes the Democrats’ apparent lack of foresight all the more striking. Even before the January 6 coup attempt and GOP apologia that came after, it was clear that Republicans saw Democratic wins at the ballot box as, by their very nature, illegitimate and unlawful. False accusations of fraud coupled with suppression tactics have cast a pall of criminality over the mere act of voting blue. These are but a preview of what could be in store.

For the Supreme Court, it is clear that whatever rights are not explicitly guaranteed by the Constitution — such as same-sex and interracial marriage — and surely some that are, will remain in place only as long as Republicans allow them to be. The right to obtain contraception seems directly imperiled by Dobbs. It is underappreciated how much of a legal playground we live in, and how firmly the conservative movement has its hands on a bulldozer’s keys, ready to tear it all down.

So what happens when a lot more of us suddenly become criminals? And how do we move forward when Democrats, our self-styled protectors, continue to respond by shoveling money at the organs that will punish our crimes? Something has to give as more people are forced to rely on underground networks for safe abortions. Democratic leaders can keep up their myopic allegiance to law enforcement, or they can see how many more of their constituents are entering its crosshairs and fight for us.

How Democrats Bolstered the Post-Roe Enforcement Regime