Third, laws that seek to punish abortion—which, at present, focus on providers and those who assist them—are going to become harder to enforce. One key reason is the emergence of telehealth for abortion. Last year, the federal government lifted a restriction on the first drug in a medication abortion—a two-drug regimen that ends a pregnancy before 10 weeks of gestation. Providers can now mail abortion pills to patients, and as a result, entirely virtual clinics, offering medication abortion through online telehealth services, have proliferated. Even in the states that ban remotely provided abortions, early terminations accomplished by pills that are mailed will be hard to trace and difficult to deter. The time, money, and infrastructure to effectively enforce those laws may not be worth the cost. In the long run, underenforcement could lead to repeal or modification of those policies.
But other factors put pressure in the opposite direction, potentially pushing even middle-ground states toward more restrictive policies. True, polls suggest that Americans do not want abortion to be criminalized, especially early in pregnancy, but the nation is politically fragmented, and abortion bans may be relatively popular in some states. Even in more contested states, many politicians may be able to protect themselves from the consequences of unpopular policies, thanks to gerrymandering, uncompetitive seats, and limits on voting. Republicans may be worried that committed anti-abortion voters will be less likely to donate to or turn out for swing-state politicians who don’t meet their demands. Florida and Georgia, for instance, are large, diverse, politically contested states where the state legislatures tend to pass laws on issues designed to energize the base, regardless of what the wider public thinks. This dynamic might only deepen after Roe is gone, particularly if abortion aligns with other hot-button topics in the country’s culture war.
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