Purvi Patel was convicted of feticide May 30, 2015, and faced 20 years in prison in South Bend, Ind., before a higher court overturned the ruling on appeal. (Photo by Robert Franklin/South Bend Tribune via Associated Press)
How to Prepare for a Post-Roe America
Roe v. Wade will fall. We must be ready for it.
August 27 | September 2018 Issue
With President Donald Trump’s selection of conservative Brett Kavanaugh to replace Anthony Kennedy on the Supreme Court, the remaining abortion protections put in place by the Roe v. Wade decision are under dire threat. We asked three reproductive justice experts—journalist and activist Robin Marty, attorney Farah Diaz-Tello and SisterSong Women of Color Reproductive Justice Collective co-founder Loretta J. Ross—to explain this new political reality and how we should respond.
Back to the Underground
Within a few years, abortion will likely be illegal in close to half of U.S. states—if we’re lucky. Should Republicans continue their control of the House, Senate and White House, within a decade or two they could easily move to pass a total abortion ban, extending the right to life guaranteed in the 14th Amendment down to the moment of conception—and have the Supreme Court votes to uphold it.
None of this came out of the blue. Anti-abortion leaders have spent the last decade urging Republican politicians to pack federal benches and pass incremental state abortion restrictions in the hopes of inching the right case up to the right mix of Supreme Court justices. As this issue went to press, the court that could make this happen was nearly set. Unless every Democrat blocks Brett Kavanaugh’s nomination and one Republican defects, Kavanaugh will be confirmed. Soon after, the Court will hear one of the many state restriction laws pending in the lower courts—either a 20-week abortion ban or even a more stringent six-week “heartbeat” version—and use it to overturn Roe v. Wade. When that happens, states will again have the final say on abortion law within their borders.
is a freelance reporter covering abortion access and the author of the forthcoming Handbook for a Post-Roe America (Seven Stories Press, January 2019).
Analysts refer to the inevitable map that would result as a “patchwork” of abortion legality, but patchwork is the wrong word. Patchwork implies one complete piece made up of different scraps of fabric. What we will have is tatters. Remnants. The South will be gone. Most of the Midwest missing. The Appalachians nearly empty. Abortion will be legal almost nowhere but the coasts and a smattering of states in between.
We’ve seen this in the pre-Roe days. Before 1973, abortion access was the stuff of calls to secret numbers posted in phone booths or passed hand to hand at women’s liberation meetings. It was a plane ride to New York or Mexico or Sweden, depending on how much money you had. It was visiting women like the Jane Collective in Chicago, self-taught and dedicated to freeing women from unwanted pregnancies, or the less skilled or less scrupulous “doctors” (sometimes licensed, sometimes not) in hidden locations where women could be arrested, kidnapped or worse.
Thanks to technological progress and decades of organizing, post-Roe America won’t look exactly like this. Air travel is more common—although still expensive—and communication is instantaneous thanks to email, cell reception and social media. We have financial and medical support from groups such as the National Network of Abortion Funds and its state affiliates, which provide abortions for those who may not have the money to afford them. Support networks in a variety of states—especially throughout the South, where abortion is already tightly restricted—can arrange travel and housing for those who need to cross state borders or take multiday trips because of legally stipulated waiting periods.
Still, these organizations will never be able to reach the many—those in poverty, those with travel barriers, those in rural areas or those in poor health—who still can’t manage to leave a state and obtain a legal termination. In an age of Trump deportations, what undocumented immigrant will be willing to pass through one of the many Border Patrol checkpoints that sit as far as 100 miles from the border? How will someone too poor to afford a $20 fee for an ID be able to get on an airplane even if a donor covers her plane ticket? How can a parent find overnight childcare in order to spend three days driving from, say, North Dakota to Minnesota and back, or an hourly worker get three consecutive days off?
That is why it is imperative that, above all, we support self-managed abortion care. In January, the American College of Obstetricians and Gynecologists declared its support to stop the criminalization of self-induced abortions, saying such laws are medically unnecessary and only cause harm. We must take action now to push state, if not federal, legislation proclaiming no person can be jailed for the act of ending their own pregnancy.
Abortion opponents repeatedly claim they have no desire to jail the women who obtain illegal abortions. Let’s make them prove it now—before it is too late for us all.
is a freelance reporter covering abortion access and the author of the forthcoming Handbook for a Post-Roe America (Seven Stories Press, January 2019).
A New Way To Criminalize Poverty
The question of the moment is: What happens if Roe falls? The policy wonk’s answer is to point to the looming abortion bans in 22 states, some designed to take effect upon Roe’s demise, others that were rejected by the courts but could spring back to life with a mere court order. The glib right-wing answer is to say that abortion policy will “return to the states” and that people who want abortion access should pull themselves up by their electoral bootstraps to install pro-choice legislatures.
is senior counsel for the SIA Legal Team, which transforms law and policy so that people who end their pregnancies outside the formal medical system can do so with dignity and without punishment. Her home is in New York City, but her heart is in Texas forever.
Neither answer, each of which focuses on access to clinics, gets to the real endgame of abortion foes: to make abortion a crime. And when there is a crime, there is, axiomatically, a perpetrator. Under most pre-Roe criminal abortion laws, the “perpetrator” was the provider and the person who obtained the abortion was merely a witness. But as people are increasingly able to access safe means to end a pregnancy at home, prosecutors treat them as their own “illegal provider” and the fetus as the victim of a crime—sometimes even charged as a homicide.
Ironically, the person who has been closest to honest on this point is Donald Trump. Remember in early 2016, seemingly a lifetime ago, when the then-candidate was asked how he planned to make good on his promise to ban abortion? He promised Supreme Court picks who would overturn Roe and parroted the shibboleth that the decision would return to the states. But then he veered revealingly off-script, saying that abortion-seekers “would perhaps go to illegal places.” Pressed further on whether this would permit states to penalize people who have abortions, he said, “There has to be some form of punishment.”
While the statement was almost immediately recanted amid rebukes from all his opponents, from Bernie Sanders to Ted Cruz, Trump’s blunder was not terribly surprising to people who closely follow reproductive rights. There’s no need to guess what would happen if Roe falls: We can look at what is happening in the states already testing the waters of criminalization.
As important of a precedent as Roe is, it is still an empty promise for many. As Robin Marty explains above page, the widespread barriers to access mean that many poor and undocumented people don’t really have a “choice.” So, seeking options that are affordable, accessible and private, people have turned to reproductive health technologies, both ancient and new, to meet their needs. The advent of effective abortion pills and the availability of information online have created options where none previously existed. According to one study, in June 2017 there were more than 200,000 Google searches in the U.S. for information on how to end a pregnancy.
As self-managed abortion has become safer medically, it has become more dangerous legally. Although the Constitution protects one’s right to decide whether to continue a pregnancy, prosecutors have attempted to criminalize people suspected of ending one. Consider Purvi Patel, the Indiana woman sentenced to 20 years behind bars for allegedly ending a pregnancy using pills she ordered from an online pharmacy. She spent three years imprisoned before finally being vindicated on appeal in 2016. Or Jennifer Whalen, the Pennsylvania mother sentenced to 18 months in prison for helping her daughter have a safe abortion with pills. According to the SIA Legal Team’s research, there have been 21 known arrests related to self-managed abortions since 2000, and likely many more we don’t know about. And with Roe under threat, prosecutors and lawmakers will rush to prove their anti-abortion bona fides.
It is a grave miscalculation to believe that post-Roe will look anything like pre-Roe. Our nation has spent the intervening 45 years devising a prison-industrial complex that is unparalleled in the world and in which women are the fastest-growing population. Surveillance technology enables law enforcement to use DNA to connect fetal remains to the person who delivered them. If we want to prevent abortion from being yet another ground for mass imprisonment, the only option is to transform the legal landscape.
Fortunately, there is change on the horizon. Massachusetts’ legislature has finally voted to repeal a 19th-century law that was used to prosecute a woman for a self-managed abortion as recently as 2007. New York gubernatorial candidates Andrew Cuomo and Cynthia Nixon are recognizing the urgent need to reform the state’s outdated abortion criminalization laws, last used in 2011 against a woman who allegedly drank a tea to end her pregnancy.
With the writing on the wall, the question for advocates is no longer how to save Roe, but how to finally ensure all people have genuine access and prevent the next arrest.
is senior counsel for the SIA Legal Team, which transforms law and policy so that people who end their pregnancies outside the formal medical system can do so with dignity and without punishment. Her home is in New York City, but her heart is in Texas forever.
Get Ready for Anti-Abortion Terrorism
What alarms me most about the threat to Roe is the potential for an uptick in anti-abortion terrorism. The increasing scarcity of abortion providers will create a vulnerable target range for those committed to ending abortion access through violence. The hostile rhetoric of President Trump—and the reluctance of federal authorities to treat anti-abortion and white supremacist violence as domestic terrorism—signals to vigilantes that they have little to fear from federal prosecution.
is an activist, author and university professor with a 45-year history working in social justice movements that focus on white supremacy, human rights and feminism. She has co-authored three books on reproductive justice.
Since 9/11, billions of dollars have been spent on sniffing out “Islamist” terrorism, while for decades multiple presidential administrations—both Republican and Democrat—have largely neglected the white supremacist and anti-abortion movements, allowing them to proliferate and strengthen. These two movements have long been connected. In the 1990s, the Women’s Watch Project of the now-defunct Center for Democratic Renewal (formerly the National Anti-Klan Network) amassed a database of more than 10,000 anti-abortion activists through records of clinic blockade arrests, newspaper clippings and infiltration of anti-abortion organizations. They found enormous crossover in tactics—threats, bombings, kidnappings, murders—and personnel. The 1993 assassination of abortion provider Dr. David Gunn in Pensacola, Fla., for example, was facilitated by John Burt, a former member of the Ku Klux Klan.
The ideology that draws white supremacists to the anti-abortion cause is based on eugenics, or population control. They believe in abortion for everyone except white women, who are commanded to have babies for the white revolution. Claiming that abortion is “white genocide,” they encourage their followers to attack clinics and providers.
If Roe is overturned, anti-abortionists may believe they need not hide their threats to the remaining abortion services, just as Trump supporters believe they no longer need to hide their gutter racism. This situation requires a response that links the white supremacist and anti-abortion movements.
The reproductive justice framework is especially useful to address this connection. I was one of 12 African American feminists who came up with the concept in 1994. We demanded that activism for abortion rights expand to the human right to have children and parent them in safe environments—a right particularly denied to poor women, who are disproportionately women of color because of the poverty caused by racism and misogyny. Reproductive justice helps close the gap between these siloed oppressions, combining fights against population control, white supremacy, and neoliberal policies like the policing of welfare recipients. With Roe under threat and white supremacy resurgent, reproductive justice could be the conceptual glue for the collective movement against the intersectional web of racism, white supremacy, eugenics, classism and heteropatriarchy.
Because MAGA beliefs contaminate all political issues, we will not succeed by isolating abortion from other human rights issues. Responding to the hydra of far-right terrorism requires this intersectional approach, which goes beyond the tactic of brandishing symbolic coat hangers. First, we have to take white supremacy seriously, on the Right and on the Left. While few progressives would debate the prevalence of white supremacy, even fewer admit to practicing its handmaiden, white privilege. In some ways, abortion opponents appear more culturally competent than our allies—our opponents generously fund the Black anti-abortion movement and enlist people of color as spokespeople, while women of color who are compelled to support pro-choice organizations (often because of the crucial services they provide) have their voices, perspectives and leadership devalued by the white privilege within the movement.
Second, we need to address the needs of those on the front lines of the reproductive health movement. While doctors receive the most attention and protection, abortion clinic workers, who are often women of color, do not have their needs prioritized, including the post-traumatic stress of working under threat of terrorist violence and often having to conceal from friends and families what they do.
Third, we need intersectional monitoring of the overlap between the white supremacist and anti-abortion movements, so we can convince federal and local authorities to prosecute these groups’ activities as terrorism, using an expanded definition that includes the domestic. We also must prioritize informing vulnerable communities of this complex threat, rather than assuming the government will take care of it.
Reproductive justice enables us to work in solidarity with movements like Black Lives Matter, for example, the same way Rosa Parks joined the board of Planned Parenthood after she ignited the Montgomery bus boycott. Parks understood intersectionality long before the term was coined. Both movements she represented faced violence through threats, arsons and murders, and she recognized a common cause. With the rising tide of neo-fascism in America, we face a familiar foe. To defeat it, we will need a unified movement for human rights and justice. 
is an activist, author and university professor with a 45-year history working in social justice movements that focus on white supremacy, human rights and feminism. She has co-authored three books on reproductive justice.
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