What will and won’t happen when abortion is banned

Abstract For the past 50 years, abortion opponents have fought for the power to ban abortion without little attention to how things might change when they won. The battle to make abortion illegal has been predicated on three nebulous assumptions about how abortion bans work. First, supporters believe banning abortion will deter it. Second, they hope bans will send a message about abortion—specifically, that abortion is immoral. And third, they expect bans to be competently implemented and enforced. Drawing on empirical work from within and outside of the U.S., this Article offers an evidence-based assessment of each of these assumptions. Part One examines the question of deterrence by exploring findings from countries with relatively high and relatively low abortion rates. After explaining why restrictive abortion laws alone do not reduce aggregate abortion rates, I consider the matter of individual deterrence. By identifying those most likely to be deterred by U.S. abortion bans, I illustrate how abortion bans intersect with structural inequalities to disproportionately impact poor women of color and their children. Part Two tests the idea that abortion bans send a message. I consider the bans’ meaning in context with U.S. laws and policies affecting families, exposing the difference between laws discouraging abortion, and those encouraging childbirth. Then, drawing from literature on the expressive function of the law, I assess the limits on the message-sending capacity of abortion bans in a society divided over abortion and over its commitment to children living in poverty. Part Three turns to the expectation that abortion bans will be competently enforced, noting the legitimacy struggles arising from law enforcement patterns, along with the administrative challenges inherent in overseeing the various exceptions to abortion bans. This article concludes by considering why the consequences and limitations of abortion bans should matter to supporters and opponents, alike.

For the past 50 years, abortion opponents have fought for the power to ban abortion without paying much mind to the details of how things might change when they won. The battle to make abortion illegal has been waged over a surprisingly nebulous assumption that banning abortion would, in itself, lead to meaningful changes in the practice of abortion in America. It has been a policy based on hopes and prayers, rather than on actual evidence about how restrictive abortion laws work in practice.
When the law on the 'books' changes in the United States, what might the law on the ground look like? Drawing on empirical work from within and outside of the USA, this article offers an evidence-based answer to the question of what will and would not happen where abortion is banned.
In the spirit of full disclosure, like almost everyone who engages with the abortion war, I have a bias: I am an unambivalent supporter of abortion rights. Nonetheless, I strive in this article to maintain a tone that I hope will permit readers who disagree with me to hear my message. I do so because those on all sides of our abortion war should care about it. For 50 years, the USA abortion war has been fought almost exclusively around the issue of legalization. 1 Yet all evidence suggests the changes likely to be wrought by banning abortion should leave even ardent supporters of abortion bans not just disappointed, but profoundly disturbed by their downstream consequences.
The question of how abortion bans work in practice is a live one among abortionrights advocates, with many, (including myself), working to identify what happens, and to whom, so as to permit advocates and policy makers to mitigate their harsh impact on the vulnerable. 2 By contrast, anti-abortion Americans who have spent decades working to enact such laws have paid relatively little attention to how things actually change when abortion is illegal. Instead, they have rested their support for outlawing abortion on three general assumptions about how abortion bans will work. First, they believe banning abortion will deter it. 3 Second, they hope the bans will send a message about abortion-specifically, that abortion is immoral. 4 And third, they expect the laws will be competently implemented and enforced. 5 This article interrogates each of these expectations. Part One begins its consideration of the question of deterrence by exploring research from countries with relatively high and relatively low abortion rates. This comparison offers powerful evidence that restrictive abortion laws alone do not reduce abortion rates. But while outlawing abortion is unlikely to cause an aggregate decline in abortion rates, bans will cause some to carry to term pregnancies they might otherwise have aborted. 6 This section concludes with an examination of how abortion bans intersect with structural inequalities to disproportionately impact poor women of color and their children-already the most vulnerable and marginalized Americans.
Part Two tests the assumption that outlawing abortion will send a message that abortion is morally wrong, thereby helping to foster a culture that rejects abortion as an option. This section considers the messages sent by US abortion bans by placing them in context with our laws and policies that inform when and whether people seek abortions. Then, drawing from literature on the expressive function of the law, this section explores the practical and symbolic limits on the message-sending capacity of abortion bans in a society divided over abortion and over its commitments to children living in poverty.
Part Three moves to the expectation that abortion bans will be competently enforced. Here, I examine the legitimacy struggles arising from law enforcement patterns, along with the administrative challenges inherent in overseeing the various exceptions to abortion bans.
This article concludes with a consideration of why the consequences and limitations of abortion bans should matter to supporters and opponents, alike.

I. THE HOPE THAT ABORTION BANS WILL DETER ABORTION
Abortion opponents anticipate that banning abortion will deter it. That said, they are not overly sanguine about this hope; anti-abortion advocates acknowledge that abortions will continue to take place, even if illegal. 7 But their support for abortion bans rests firmly on the expectation that there will be fewer of them, once abortion is a crime. 8 In this section, I explore the question of deterrence, first considering the population-wide impact of bans on abortion rates, and then describing the Americans most likely to be deterred by abortion bans.

I.A. Deterrence, in the Aggregate
To think about whether abortion can be deterred by outlawing it, we must begin by reflecting on what leads people to have abortions. Abortion demand is driven by a host of factors-health status, relationship status, job status-but the most commonly cited concern is lack of money. 9 Half of all US abortions go to the 13 per cent of Americans living below the poverty line-which in 2022, means living on less than $13,590. 10 Those living in poverty or near poverty make up a full 76 per cent of abortions every year. 11 These are people whose abortion decisions are motivated, at least in part, because they cannot afford the costs of child rearing. 12 Rather than focusing on reducing abortion demand by offsetting the costs of having children, abortion bans aim to deter abortion solely by reducing access to legal abortion. Even a cursory glance at worldwide abortion rates suggests that strategy might not work. Abortion rates vary dramatically by region. In Latin America, (home to countries with the world's strictest abortion bans), we find some of the highest abortion rates in the world: 32 abortions for every 1000 women. 13 At the other end of the spectrum, Western Europe, (with relatively liberal abortion laws), has the world's lowest abortion rates: only 12 abortions per 1000 women. 14 The variation in abortion rates is best understood as an artifact of variation in rates of unintended pregnancy. 15 The single biggest predictor of abortion rates is not the legal 15 An unintended pregnancy is one that occurred when a woman wanted to become pregnant in the future but not at the time she became pregnant ('wanted later') or one that occurred when she did not want to become pregnant then or at any time in the future ('unwanted'). See Unintended Pregnancy in the United States, status of abortion, but rather, the percentage of pregnancies that occur among those who were not looking to have a baby. In 2014, the most recent year for which data is available, 44 per cent of pregnancies globally were unintended. 53 per cent of those unintended pregnancies ended in abortion. 16 Rates of both unintended pregnancy and abortion vary by a country's wealth status. In the world's wealthier nations, over the past quarter century, rates of unintended pregnancies dropped by 30 per cent, triggering a decline in abortion rates from 46 abortions per 1000 women of reproductive age to an average of 27. 17 By contrast, over the same time frame in the developing world, unintended pregnancy rates fell by only 16 per cent, while abortion rates remained static. 18 Like other wealthy countries, U.S. abortion rates have dropped significantly in recent decades. 19 The decline is evident across almost every demographic in the countryyounger, older, Northern, Southern. With one exception: abortion rates have remained constant among the poorest Americans. 20 This finding underscores the significance of unintended pregnancy in driving abortion rates: nearly half of all pregnancies in the United States are unintended-a higher rate than in many other developed countries. 21 These rates vary dramatically by class: a poor woman in the USA is more than five times as likely as an affluent woman to have an unintended pregnancy. 22 The single most effective way to help people avoid unwanted pregnancies, thereby deterring abortion, is by increasing contraception rates. When the Affordable Care Act mandated insurance coverage for contraception, the unintended pregnancy rate dropped from 44.7 to 37.9 per cent. 23 And yet, the anti-abortion movement has opted to oppose efforts to increase access to contraception. 24 Indeed, abortion opponents vigorously fought the Affordable Care Act's birth control mandate, which the Supreme Court ultimately struck down in 2014. 25 If the goal of banning abortions is to deter them, a strategy that fails to focus on reducing unintended pregnancy seems limited, at best. But even if one accepts that abortion opponents are too ambivalent about promoting contraception to center the goal of deterring abortion by reducing unwanted pregnancy, the plan to deter abortion by banning it is flawed for a second reason. Specifically, owing to the ready availability of abortion medicines, abortion bans cannot effectively restrict access to a safe, effective, and affordable means to end a pregnancy.
The widespread availability of abortion medicines has completely transformed the world of illegal abortion. Unlike the pre-Roe era, medication abortion solves the problem of finding a doctor to perform an illegal abortion, while simultaneously reducing the health risks. 26 The most common and widely available abortion medicine is misohttps://doi.org/10.1186/s40834-020-00118-5 (describing the factors underlying the disparate rates of unintended pregnancy by race and class). One finds evidence of this struggle in the data on contraceptive use among sexually active women not seeking pregnancy. While 90% of those covered by private health insurance and 87% of those covered by Medicaid use contraception, that figure drops to 81% for those who have no insurance coverage.  17,2017), https://nwhn.org/much-different-ki nds-birth-control-cost-without-insurance/ (noting that the most effective methods, long-acting implants and devices, cost upwards of $800, and that oral contraceptives can cost up to $600 per year).Cost is not the only barrier to contraception, ranging from cost to personal preferences. For example, Black women tend to report higher rates of dissatisfaction with existing contraceptive options, putting them at further disadvantage in terms of risk of unwanted pregnancy. Andrea V. prostol. 27 Although less effective than the FDA-approved combination of mifepristone and misoprostol typically used in medical abortions in the USA, misoprostol alone causes an abortion in approximately 90 per cent of cases. 28 Efforts to restrict access to misoprostol are complicated for two reasons. It is both cheap and easy to manufacture, costing only pennies to make, and it also is an important life-saving medicine. 29 Indeed, the World Health Organization lists misoprostol as an 'essential medicine,' owing in part to its vital role in reducing deaths from postpartum hemorrhages, miscarriages, and illegal abortions. 30 There is a robust international market in misoprostol across the world todayparticularly in countries where abortion is strictly banned. 31 Even in Central America, which boasts the world's strictest abortion bans, one in three pregnancies ends in abortion, largely induced by medicines purchased online or on the street. 32 Americans familiar with the black market in opioids should have little trouble imagining how a market in abortion medicines will proliferate, where abortion is banned. As is all too evident from the scope of the opiate problem, it is unrealistic to think the government can prosecute away the expanding market in abortion medicines. 33 Outlawing abortion may lead to a short-term decline in US abortion rates, while people adjust to new market conditions. 34 But as we learn from the experiences of 27  countries throughout the world, this decline is unlikely to be sustained. If anything, given the availability of reliable online information and buying options, it should take far less time for people to adapt to accessing illegal abortion than was true for alcohol access after Prohibition. 35

I.B. Deterrence, in the Specific
Even if abortion bans are unlikely to cause an aggregate decline in abortion rates-at least not independently of other trends 36 -we can predict that they will cause some to carry to term pregnancies they might otherwise have aborted. 37 In fact, we have a surprisingly clear picture of those who the bans are most likely to deter: they will be disproportionately young, poor, Black, and brown women. Abortion bans come as one in a long list of factors that circumscribe the reproductive lives and life options of these Americans. 38 They are more likely to experience unintended pregnancy, and where abortion is outlawed, they are more likely to struggle with accessing abortion, whether by traveling to a legal jurisdiction, or by identifying reliable information about how to safely end an unwanted pregnancy with abortion medications. 39 Those who support abortion bans on deterrence grounds have yet to fully grapple with what happens to those for whom abortion, legal or otherwise, is out of reach. The standard response is to promote the solution of placing newborn babies for adoption. Justice Amy Coney Barrett nodded to this viewpoint at oral argument in the Dobbs case, correcting the assertion that abortion bans amount to 'forced motherhood' by noting that safe haven laws permit them to surrender their newborns without legal consequences. 40 Adoption proponents point to the ways in which open adoptions have become the norm, hopeful that the prospect of staying involved in their baby's life will 35 In the immediate aftermath of Prohibition-evidenced by mortality rates, mental health, and crime statistics-alcohol consumption fell to approximately 30% of its pre-Prohibition level. But this drop in alcohol consumption was short-lived. Within a few years after Prohibition, alcohol consumption had increased to 60-70% of its pre-Prohibition level. encourage more people to place them for adoption. 41 Banning abortion, as they see it, can be a 'win-win-win' situation, in which the baby survives, the mother gets to go on with her life, and a married couple or family gets to raise the child. 42 Yet all available evidence suggests that banning abortion is unlikely to transform adoption from an outlier into a commonplace response to unwanted pregnancy. Even in the years prior to Roe, when the stigma of unwed motherhood led some facing pregnancy to place their babies, only 9 per cent of women chose adoption. 43 Much of that rate was driven by white women, because the two-parent family norm was less entrenched among Black and brown Americans. Today, the stigma is gone: 40 per cent of all children are born out of wedlock. 44 When faced with an unintended pregnancy, fewer than 5 per cent of people seriously consider adoption, and of those, fewer than 2 per cent ultimately place their children with adoptive families. 45 The best indication of what is likely to happen to those unable to access abortion is found in the Turnaway study, a 10-year longitudinal investigation of the impact of being denied an abortion. 46 That study followed hundreds of women who sought abortions, but were turned away because they were beyond the clinic's gestational limits. 47

• What will and won't happen when abortion is banned
The Turnaway study also tells us about the consequent intensification of poverty for these families: [C]hildren of women who are denied an abortion had greater odds (72 vs 55%) of living in poverty compared to children of women who received a wanted abortion. Similarly, existing children were more likely (87 vs 70%) to live in a household in which their mother is not able to afford necessary living expenses such as food, housing, and transportation compared to children of women who received a wanted abortion. 49 As we look to understand what happens when an abortion ban 'works' by deterring abortion, the only question is how broad a lens to use. More than one in three singlemother families lived in poverty in 2016. 50 Poverty is not color-blind. Instead, far more women of color live in poverty than do their white counterparts: close to 25 per cent of all American Indian or Alaskan native and 20 per cent of all Black and Hispanic women live in poverty, compared to only 9 per cent of their white counterparts. 51 So severe are the downstream consequences for children born into poverty that the American Academy of Pediatrics issued a statement decrying the short and long-term consequences of the 'medicalization of poverty': Children who experience poverty, particularly during early life or for an extended period, are at risk of a host of adverse health and developmental outcomes through their life course. Poverty has a profound effect on specific circumstances, such as birth weight, infant mortality, language development, chronic illness, environmental exposure, nutrition, and injury. Child poverty also influences genomic function and brain development . . . . Children living in poverty are at increased risk of difficulties with selfregulation and executive function, such as inattention, impulsivity, defiance, and poor peer relationships. Poverty can make parenting difficult, especially in the context of concerns about inadequate food, energy, transportation, and housing. Child poverty is associated with lifelong hardship. Poor developmental and psychosocial outcomes are accompanied by a significant financial burden, not just for the children and families who experience them but also for the rest of society . . . . 52 We should read these statistics as a forecast. To the extent abortion bans deter abortion, we will likely see a disproportionate increase in the number of poor families of color experiencing the devastating consequences of living in poverty. Abortion opponents are of two minds about how to respond to the poor predicted outcomes for those who opt to raise children after being unable to access abortion. Small numbers of advocates-largely drawn from the volunteer ranks of pregnancy support or 'crisis pregnancy' centers-advocate helping women who are in desperate straits by offering housing, counseling, job training, and other support. 54 But the dominant voice of the anti-abortion movement-those advocates engaged in political activism and law reform, rather than direct service-focuses not on supporting poor mothers, but instead, on promoting adoption. 55 The suggestion that adoption is the optimal solution to a poorly timed pregnancy is as convenient as it is naïve. It allows abortion opponents to avoid a reckoning with consequences of having made the Republican party their political home. 56 The GOP's historical and ongoing objection to family-friendly government policies 57 will make it hard, in the years to come, for abortion opponents to gain much traction for laws aimed at blunting the crushing impact of poverty on those whom the bans deter from having abortions.

II. THE HOPE THAT ABORTION BANS WILL SEND A MESSAGE
Those who support abortion bans do not rest their support solely on the expectation that such laws will deter abortion. Instead, abortion opponents often invoke the belief that changing the law will send a message, thereby promoting culture change. 58 This section first considers the nature of that message, and then turns to whether it will be received.
It is helpful, when considering the message sent by outlawing abortion, to note the difference between an anti-abortion message (one that condemns abortion) and a pro-natal message (one that urges people to have babies). This distinction is easiest 54  to observe when contrasting U.S. laws with those of countries that actively encourage childbearing. Consider the case of Israel, which makes abortion a crime unless the person can prove to an official 'pregnancy termination committee' that they qualify for one of the statute's exceptions. 59 This law would send a message that, outside of exceptional circumstances, abortion is wrong. 60 But it also exists alongside a host of laws and policies that encourage people to have children. 61 In Israel, there is guaranteed paid maternity leave-you can leave your job for 26 weeks, still get paid, and your employer cannot fire you. 62 Parents enjoy access to local neighborhood, government-subsidized day care. 63 In addition to tax deductions, the Israeli government pays everyone-rich and poor alike-a small monthly allowance for each child under eighteen. 64 In addition to the ways in which these policies help offset some of the most immediate costs associated with having a child, they send a message about how the government feels not just about abortion but also about babies. Israel's laws send a message that the government wants people to have babies.
By contrast, US laws reflect little interest in encouraging people to have babies, particularly ones they cannot afford to raise. There is no paid parental leave, and no job security at all beyond the first 12 weeks of unpaid leave. 65 There is no child allowance. The Covid-related child income tax break, which reduced child poverty by 30 per cent, was permitted to lapse after a single year. 66 The goal of providing universal access to quality day care and preschool remains a pipedream. 67  amounts to more than 60 per cent of the federal poverty line, with the result that even in states with relatively generous monthly allocations, families cannot afford modest rent. 68 Those who believe abortion bans promote a culture of life might do well to recognize that any message sent by an abortion ban is necessarily entwined with the messages sent by government laws and policies that set the price of having a child. The message of an abortion ban on its own says little about embracing life, and instead merely suggests that abortion is wrong. 69 As to whether that message will be received, the answer is complicated. For all that, it is common to suggest the law can send messages, there is surprisingly little evidence for how it might do so. Professor Richard McAdams, one of the leading authorities on the 'expressive function' of the law, posits that an expressive law reveals the lawmakers' beliefs, which in turn causes individuals to update their beliefs and ultimately to change their behaviors, usually in the direction of compliance. 70 He points to the example of indoor smoking bans by way of illustration. In the face of mounting evidence on the harmfulness of secondhand smoke, lawmakers enacted indoor smoking bans that served, in part, to send the message that tobacco was dangerous. In turn, these bans helped shift the culture away from smoking. 71 According to McAdams, smoking bans succeeded because lawmakers had a clear, credible message. But government credibility is not automatic; rather, it is earned. To send a message, government actors must offer some reason why the public should trust their conclusions. McAdams suggests the government earned credibility by persuading the public they were acting on data showing that the hazards of secondary smoke inhalation required nothing less. 72 Unlike smoking bans, abortion bans address themselves to a question of moralityone that cannot be settled by aggregated data or special expertise. A government hoping to persuade the public that abortion is immoral will struggle simply because it lacks the expertise needed to settle the question. 73

• What will and won't happen when abortion is banned
The challenge of sending a message by banning abortion is intensified by the impact of the ongoing battle over abortion's legality. When it comes to the law's ability to send a message, Professor McAdams notes, background noise can be fatal: Individuals are constantly being bombarded by information from sources other than the law: the print media, Internet, social acquaintances, etc. For expression to change beliefs, there must be some factor that makes the legal signal strong enough to stand out against this background. 74 To send a message, abortion bans must compete for air time with a world of countermessages. After all, the fight over abortion does not end with abortion bans. Together with the likelihood that abortion remains commonplace, even where banned, and remains legal in almost half the country, the message-sending capacity of abortion bans is more akin to that of marijuana bans than to indoor smoking bans. 75 At the end of the day, perhaps the most that can be said for the message-sending capacity of abortion bans is that, where popularly embraced by an anti-abortion electorate, the bans might contribute to a broader cultural message that abortion is wrong. As Katrina Kimport forcefully demonstrates in her book, No Real Choice, the 'abortion as killing' narrative can combine with structural constraints like legal barriers and cost to render abortion 'unchoosable.' 76

III. THE HOPE THAT ABORTION BANS WILL BE COMPETENTLY IMPLEMENTED AND ENFORCED
The final set of expectations harbored by those who support outlawing abortion involves tacit baseline assumptions about how the law will work, in practice. Specifically, supporters assume that abortion bans will be competently implemented and enforced-that the laws will have integrity. Competent implementation and enforcement are not abstract ideals, but rather, are necessary preconditions for a law to be considered a legitimate exercise of state authority. The failure to competently implement an abortion ban will undercut its legitimacy, thereby undermining both the law's capacity to deter abortion and also its ability to send a message.
To understand the practical considerations relevant to enforcing abortion bans, begin by noting what is required in order to implement them. The standard form of US abortion bans includes a general prohibition, accompanied by a small number of exceptions. 77 This structure gives rise to two implementation and enforcement ques-tions, both of which will determine whether the laws are ultimately seen as legitimate exercises of government authority. When and how will prosecutors endeavor to enforce the bans, and by what mechanisms will states evaluate cases involving exceptions to the bans?
Let us examine each of these in turn.

III.A. Enforcing Abortion Bans
Supporters of abortion bans have given relatively little thought to the question of how abortion laws will be enforced. In late 2021, movement leader Marjorie Dannenfelser, President of the Susan B. Anthony List (a nonprofit that supports pro-life politicians) explained how she views the question of enforcement: [M]y view, and the view of the entire movement-without any exception that I'm aware of-is that the doctor, the one who has been planning to break the law, is the guilty party. The law is enforced against that person, not the woman. 78 But illegal abortion today need not involve a doctor or any third party besides an overseas pharmacy, outside the easy reach of US laws. 79 Given abortion medicines, the reality is that there are no doctors to prosecute. When abortion becomes a crime, the question of who is the criminal will require an answer. And rather than being answered by movement leaders, the decision will rest in the hands of locally-elected prosecutors. No county can afford to prosecute every crime-far from it-so local District Attorneys set priorities when enforcing the law. 80 Their choices may be informed by many factors: staff resources, strength of evidence, heinousness of crime, perception of public will, or say, pro-choice or antiabortion sentiment. As Judge Stephanos Bibas notes, there is no check on 'idiosyncratic prosecutorial discretion.' 81 A quick review of abortion prosecutions both historically and today helps us understand what idiosyncratic abortion prosecutions might look like. Historian Leslie Regan's work documents the episodic nature of abortion prosecutions in the years prior to Roe, showing how they tended to be sporadic-an occasional crackdown, motivated by a zealous prosecutor, rather than a comprehensive effort at enforcement. 82 A similar pattern is seen today in places where abortion is outlawed. For example, consider El Salvador, which bans abortion without exception. In the 10 years from 78

• What will and won't happen when abortion is banned
2000-2010, there were 129 prosecutions. 83 This number suggests enforcement is relatively rare-just over 10 prosecutions per year-when, by the government's own estimates, the country sees tens of thousands of abortions every year. 84 But there is a pattern to the prosecutions. Those charged with abortion crimes are drawn from the most vulnerable, marginalized sectors of society. 85 Almost half were illiterate; only a quarter had attended high school. 86 In the U.S. we already see a version of this pattern: abortion-related prosecutions are brought by zealous prosecutors 87 , and they disproportionately target Black and brown women. 88 The work of National Advocates for Pregnant Women helps us to understand the scope of abortion-related prosecutions in the years since Roe legalized abortion. They have tracked 1600 USA such cases since 1973. 89 These cases involve a range of allegations, linked by the common thread of alleged harm to a pregnancy. 90 The prosecutions overwhelmingly target poor people, and in particular, poor Black pregnant women. Of 413 cases arising from 1973 to 2005, 71 per cent involved low income women, of whom 59 per cent were women of color, with 52 per cent identifying as Black. 91 These patterns in abortion-related prosecutions tell us two important things. First, we can expect abortion bans to be enforced against those who end their own pregnancies. 92 And second, abortion prosecutions are likely to target the most marginalized, vulnerable members of society-those whom prosecutors view, or at least believe others will be willing to view, not as victims but rather, as villains. 93 Supporters of abortion should stop insisting that bans won't be enforced against women, and should start figuring out what to do about the fact that, when abortion bans are enforced, the defendants will likely be Black and brown. It is, of course, unfair to make one subset of the population pay the price for acts that go unpunished when committed by others. Furthermore, as we learn from racial disparities in drug law enforcement, such patterns undermine the legitimacy of the law, and have downstream corrosive effects both on the people disproportionately targeted by the law and on society as a whole. 94

III.B. The Return of Conditional Abortion Access
Setting aside the question of prosecution, abortion laws also must be fully implemented in the regulatory sense of the word. A law that limits abortion access to patients with qualifying conditions presupposes an adjudicatory mechanism for determining eligibility. And barring a dramatic evisceration of the right to life for those who are pregnant, every state will have to make at least one exception to their abortion bans, for life-threatening pregnancies. How will a patient establish their right to an abortion when they are experiencing a life-threatening pregnancy?
There are a variety of models by which states might screen such claims, ranging from relatively formal proceedings, such as those seen in cases involving termination of government benefits, to loosely structured processes like school disciplinary hearings. 96 Indeed, we already have a model for abortion-related adjudications in the judicial bypass system, by which minors can seek permission to end a pregnancy without parental involvement. 97 Each model is fraught, when it comes to screening for abortion eligibility. Formal judicial hearings pose challenges in terms of accuracy (there is surprisingly little agreement on what constitutes a life-threatening pregnancy) 98 and efficiency (given the urgent, technical nature of the inquiry). 99 A judge could not conceivably rule on such petitions without expert testimony, which raises numerous questions about process and evidence.
Prior to Roe, rather than ask judges to decide these cases, states delegated the determination to doctors, essentially leaving the medical profession to devise its own ways of complying with the law. 100 For reasons ranging from lack of consensus about qualifying conditions, 101 to concern over the legal implications of their decisions (which might trigger prosecution on the one hand, or a wrongful death suit if the pregnant patient dies, on the other), 102 doctors eschewed this responsibility. By the mid-20th century, hospitals around the country used so-called 'therapeutic abortion committees' to establish eligibility. 103 These committees were marked by inconsistent outcomes, stemming from a lack of consensus over what constituted a 'valid' reason for terminating a pregnancy, whether legally or morally. 104 Rather than standardizing the application of the law, the committee process facilitated ad hoc decision-making. 105 As states set about banning abortion, it is urgent that they erect a scientifically sound, impartial process by which to evaluate cases involving potentially life-saving abortions. Given that the vast majority of Americans support abortion in cases of lifethreatening pregnancy, we can expect an enormous outcry from all quarters in the case of an incompetent oversight process, let alone a highly publicized death. 106 Yet the struggle to define what constitutes a life-threatening pregnancy, (or depending upon the law, a qualifying rape or fetal anomaly), is just the start. Which parties' interests will be represented at these adjudicatory proceedings; however, they are configured? Will the pregnant patient be entitled to a lawyer? 107 Will the fetus? If unhappy with the outcome, can either side appeal? Will there be an expedited appeals process? By what criteria will adjudicators be chosen? Will these be adversarial proceedings, with experts from the state and from the pregnant patient's medical team, or will the patient's doctor's testimony suffice? How will the government determine whose interests it represents: those of the patient in peril, or those of the fetus?
These are serious questions, made all the more so because they implicate vital interests and therefore trigger Constitutional due process rights. 108 Surely, there will be litigation over the answers in the years to come. But what is interesting about these questions is not so much their answers, but instead, the reality that they demand answers now. We are past the time when those who support banning abortion can respond to such questions about how the laws will be implemented with vague references to 'traditional means of enforcement.' 109 And the quality of those answers matters because inconsistent, incompetent or otherwise corrupt law enforcement cannot help but undermine the legitimacy of abortion bans.

IV. CONCLUSION
We have spent half a century reckoning with abortion largely in abstractions, fighting over rights rather than focusing on the people whose lives are affected by those rights. If nothing else, the impact of abortion bans seems likely to put human faces on the abortion war. And if we stay true to the patterns laid out in this essay, those faces will be disproportionately poor, Black and brown women and children.
Abortion bans are not color blind. It has become common for abortion opponents to invoke allegations of eugenics and racism when talking about abortion rates among Black Americans. 110 That rhetoricalready contested 111 -will become strained as the country witnesses the actual racist impact of abortion bans: their disparate impact on poor Black families, coupled with the disparate rates of prosecution of Black women for acts that go largely unpunished when committed by whites. 112 By bringing into focus the struggles facing the most vulnerable among us, abortion bans have the potential to transform the abortion war by forcing a direct engagement with the structural forces driving abortion, poverty, and racism. We are approaching a moment of truth for advocates on all sides of the abortion war.
For advocates of abortion rights, there will be a reckoning with the question of whether being pro-choice simply means supporting the right to abortion, rather than a commitment to working to offset the forces that constrain all reproductive optionsincluding having a child. As Sister Song, a leading voice of the reproductive justice movement puts it, the commitment is to support, 'the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.' 113 As the impact of abortion bans brings structural inequality into sharp focus, will pro-choice movement leaders stay focused on legalizing abortion, or will the movement commit to this more robust understanding of reproductive autonomy?
For abortion opponents, the question is whether the term 'pro-life' has come to mean anything beyond one's support for abortion bans. The years ahead likely will pose an existential challenge for people who have supported abortion bans, but who cannot help but be disturbed by the ways in which they fall short of expectations. Perhaps this result will embolden those who care deeply about deterring abortion, and find them laboring to craft policies that might actually help those contemplating abortion to continue their pregnancies. 114 Certainly, anti-abortion movement leaders are aware of the need to do something proactive in response to the impact of abortion bans on the poor. As Marjorie Dannenfelser, of the Susan B. Anthony Fund, put it: 'Speaking for the pro-life movement, which is obviously attempting to lead Republicans, we absolutely, without question, have a responsibility to serve the needs of women and children as we pass ambitious laws. There's no question about it.' At the same time, Dannenfelser is aware that such policies are unlikely to fly, at least not in states dominated by a Republican party that has long opposed family-friendly government programs. 115 There's a quote I keep on my desk these days: "How will we go when we're faced with this? I don't think it's predetermined, and a great human moral drama is being played out in front of us." 116 It is from a historian of pandemics, written in the early days of Covid-19. I keep it there because it speaks to me as we navigate the era of abortion bans. There is comfort in the invitation to step back and notice that we are in a time of high moral drama, in which things are in flux. But there is also, within it, a call to action. "How will we go when we're faced with this?"