How to Prepare for a Post-Roe America

Robin Marty, Farah Diaz-Tello and Loretta J. Ross August 27, 2018

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. In a post-Roe America, charges similar to Patel’s could become widespread. (Robert Franklin/ South Bend Tribune via Associated Press)

Roe Will Fall. We Must Be Ready for It.

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.

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 self­in­d­uced 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.

—Robin Mar­ty

We Need To Legal­ize Self-Abor­tion Now

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.

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 on the pre­vi­ous 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 pris­onin­dus­tri­al com­plex that is unpar­al­leled in the world and in which women are the fastest­grow­ing 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. 

—Farah Diaz-Tel­lo

A Surge of Anti-Abor­tion Ter­ror­ism Is Coming

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.

Since 911, 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, antiabor­tion­ists 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 post­trau­mat­ic 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.

—Loret­ta J. Ross

LORET­TA J. ROSS 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. ROBIN MAR­TY is a free­lance reporter cov­er­ing abor­tion access and the author of the forth­com­ing Hand­book for a Post-Roe Amer­i­ca (Sev­en Sto­ries Press, Jan­u­ary 2019). FARAH DIAZ-TEL­LO 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.
Limited Time:

SUBSCRIBE TO IN THESE TIMES MAGAZINE FOR JUST $1 A MONTH