Strategies for a Post-Roe America — and for Post-Roe American Women

Originally published in The American Prospect on March 11, 2019.
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Independent journalist Robin Marty, one of the nation’s top reporters covering reproductive rights, has published a new book—Handbook for a Post-Roe America—with practical advice for women who might actually need to terminate a pregnancy in the future and for people who support abortion rights. While reproductive choice is at risk regardless of what happens at the Supreme Court, there’s little question in Marty’s mind that the landscape will soon look different in a world where Roe is overturned. The faster people accept that, she argues, the faster people can start preparing. This conversation has been edited and condensed.

Rachel Cohen: So, to get started, do you think we are headed for a post-Roe America?

Robin Marty: I am so certain at this point that I will even tell you it will be overturned in 2021. Abortion opponents already have all the cases they need, I’m fairly certain at this point it will be a case on banning D&E [dilation and extraction, a surgical abortion procedure typically performed during the third trimester or the later part of the second trimester] and that will be the case they use to overturn Roe. We know the Fifth Circuit is looking at it right now, and we’re pretty sure that court is going to say it’s not unconstitutional for Texas to do a D&E ban. And that would leave a split circuit decision, which would let the Supreme Court weigh in.

The Supreme Court will pick a case where lawyers can be extraordinarily gruesome. Abortion opponents love D&E bans because they’re so grotesque and no one can defend them without saying you have to pull out a limb.

I expect 2021 because they won’t have a case before the next presidential election, they know that’s the only way they can get the same evangelical voters out to get Trump re-elected. Once the election is over, they will go ahead and move as quickly as possible.

You’ve notably said you think the end of Roe would be a good thing.

I’m quite excited. Roe being overturned is the best thing that could happen to our movement. We’ve been treading water since 2010, we’ve seen all these red states that have been chipping away at access, but it took until Trump was elected and Roe was in honest-to-God jeopardy for all the really privileged and white people to understand that abortion could be cut off for everyone, not just the people who have already lost access. Ending Roe will put everyone on the same level.

Does that mean you supported Gorsuch’s and Kavanaugh’s confirmations?

Oh God, no! They are such a disaster for civil rights and more, even beyond just abortion.

Don’t you think privileged women in states like Massachusetts, New York, and California will continue to feel like the rollback in access doesn’t mean much for them personally?

But they will still be able to see the impacts more directly. Just being able to see people put in jail for accessing their own care—I mean people will get abortion pills, people will get caught, and there will be stark consequences—I think that will be the turning point. It’s like [in 2012] in Ireland when Savita [Halappanavar] died from a septic miscarriage after having been denied an abortion. That was a turning point for the country.

When we go post-Roe, what we’re going to have to decide as a movement, and as activists in general, is what is our new standard? What is accessible? Why does it have to be at a clinic? Why does it have to cost $500 out of pocket at a minimum? We’ve been so busy trying to protect this right that honestly isn’t that great. Is it worth protecting anymore? I don’t know that it is.

Would you say this is a mainstream view among pro-choice leaders?

It’s not a mainstream view, per se, but it’s something that I’ve been talking to audiences about as I’ve done my book tour. Everyone’s first thought is: How could you say Roe coming to an end is a good thing?! And then we talk about it, how now everyone will be in the same position as these marginalized communities that have one clinic in their state and a 72-hour waiting period, and once people understand that abortion is already inaccessible, and maybe it’s time to just get rid of Roe and start fighting for the human right to decide, people get it.

National organizations don’t like any of this, it would be dismantling the power of national organizations and effectively redistributing those resources to local groups. A lot of my work is about why we need to take abortion outside of clinics.

You mean to do more abortions at home?

Yes. In some way, what we’re seeing is the same debate we saw around home births and midwives. This isn’t very different from that, but there’s a resistance to the idea that we don’t need to do this procedure at a clinic, that we don’t have to have formal medical intervention. A lot of this can be left up to us. If we’ve already proven it’s not dangerous—which we have at this point, over and over—then we should be more forceful in pushing for that.

Your book was very practical and concrete. Can you talk about some of the specific suggestions you laid out for emergency contraception?

Emergency contraception was actually how the book started. As soon as [Justice Anthony] Kennedy announced his retirement, I saw a ton of people saying online they were going to give money to Planned Parenthood and stock up on emergency contraception. And my first thought was, “Whoa, now.” That led to Huffington Post piece where I tried to say how you can do things like that in a more responsible way, which turned into this book.

Sterilization came up in your book as one way women could prepare for a post-Roe America. I was a bit surprised to see that. In your research, are you finding that’s already happening?

Yes, I am finding that women who have already decided they would not be interested in having children, or more children, are looking at this. The problem is it’s quite difficult to get sterilized—doctors don’t like to do it. It’s kind of a paternalistic thing, like saying you surely haven’t met the right man, or you’ll regret not being a mother. There are also a lot of rules—like you have to give consent for the procedure two weeks before you get it done. I have kids and I’ve also been sterilized.

In a chapter focused on organizing, you urged readers to focus on city councilmembers. I feel like the conversations around abortion restrictions has been focused heavily on state legislators and the U.S. Supreme Court.

The reason this book exists is to help take our attention off the bigger picture—which we’ve been paying attention to for a really long time. But national solutions are just not the best place for us to use our resources right now. My book is about drilling down as local as you can get, investing in your state, in your city, and in your local clinics.

One thing we’ve noticed about how power works is the more directly you’re involved in the area in which you can have real power, the more exponentially powerful that is. So for city councils, we’ve seen they are often the last bastion of protecting or ending access to abortion. We saw that when Whole Woman’s Health was trying to open a medication abortion clinic in Indiana. At first it was the city council that tried to block it, then the mayor overrode it, and then the city council tried to block it again. It’s now still going through lawsuits.

City councilmembers have say over things like zoning and noise ordinances, ensuring that buffer zones can be upheld. If there is a city council that is friendly toward abortion rights, that often impacts how the police will deal with people who protest and attend clinics.

Can you talk about the Pregnant Women’s Dignity Act?

The one thing we really need to do is get abortion out of the criminal code. One way to do that is through this law, the Pregnant Women’s Dignity Act, which is promoted by the Public Leadership Institute. It says if a person has any kind of poor birth outcome—it’s not her fault, it’s not something that should be investigated, this is not something that has a place of blame. It doesn’t matter if she did it on purpose, if it was by accident—it’s just a personal medical thing that has occurred and it does not involve the police or the courts.

You explore the idea of creating a new kind of infrastructure of housing, transportation, safety, and financial support for women who need to travel to get abortions in a post-Roe America.

I’ve been thinking about this a lot. Say that Roe is overturned and in Kentucky the state makes abortion completely illegal, and there’s just one remaining clinic. What happens to that clinic? Would that be a good place that you can then set up a hostel for women who need to then travel out of state to get an abortion? If Roe is overturned there will be no abortion in the entire Gulf area, no abortion in most of the Rust Belt. We’re talking about humongous chunks of the country. People are talking about how to make states like New York and Colorado these safe havens where people can go, but what’s the best way we can get people together so they can actually do it efficiently?

Can we bring all the people in the state of Kentucky together so they can all take a bus to Chicago together? Then none of them will have to worry about needing to drive. We have to think about how to work with systems that will be left, and how best to use it especially for those who aren’t going to have the funds to do long-distance travel.

Do you think we’ll increase the number of clinics in the future?

I’ve heard some people say, “Okay, we should build abortion clinics next to airports, so people can get off, get the procedure, and go right back home,” and my first thought was: Have these people tried to open a clinic lately?!

Just last [month] there was a piece in The Austin Chronicle about Whole Woman’s Health losing their Austin office, and they had spent months trying to find a new place they could move into. And this is in liberal Austin! There’s just so much pressure, no one wants to sell or lease their property to an abortion clinic.

I think for the most part what we have for clinics is as much as we’re going to get. And I don’t think that matters—I don’t think we should need as many abortion clinics. If people could just do it at home, as they should be able to especially with telemedicine, then we just need to have enough clinics that people can do follow-ups for later abortion or for people who can’t do it.

But haven’t studies shown that women prefer surgical abortion if they have the choice?

I totally understand why people would choose surgical abortion—you don’t have to worry about the follow-up, you don’t have to see the procedure, but if you look at Iowa, they had an extraordinarily successful telemedicine abortion program until [legislators] took it down. And what they discovered in Iowa was it didn’t increase the number of people having abortions, they just were able to have them earlier.

Your book also looks at the question of civil disobedience and direct action in a post-Roe America.

Yes, I think we’re going to see a lot more civil disobedience. There was a Mother Jones article recently about a woman who sold medication abortion online for years, and that finally got shut down by federal agents. The only thing that made the police finally get involved was because a man used the medication he bought from her to commit a crime.

As I was reading it I thought, how many people would need to start online websites, offering medication abortion for sale, before the FDA threw up their hands and said I can’t keep up with them all? That’s the kind of thing I’m thinking about. What’s the critical mass where so many people are breaking the law that it’s no longer feasible for authorities to keep up? And who are the right people to do it and how do we organize en masse?

What are some other examples of civil disobedience that you can imagine?

There’s a bill that was just reintroduced in Congress, and it comes up every year, the Child Interstate Abortion Notification Actor CIANA, which would make it a crime to transport a minor across state lines to get an abortion without parental consent. One of the best things NARAL ever did was they dubbed this the “Jail Grandma law.” They brought to mind a picture of a young girl who goes to a different state to get an abortion, and for some reason her parents couldn’t take her so her grandma takes her across the border. Are we really going to throw grandma in jail? That ground everything to a halt, and that is a perfect example of why we need old white ladies to do civil disobedience.

So the last thing I wanted to ask you about was surveillance, and why being conscious of that will be important in a post-Roe America.

One of the reasons it’s really important to pay attention to what you’re saying over open phone lines, over what you’re searching on Google, over text messages, is that when Purvi Patel was arrested in Indiana for allegedly inducing her own abortion, the state went back and forth on is this murder? Is this feticide? A lot of what they used against Patel were texts in her own phone. We need to be aware that if we do decide that it’s time to organize outside the legal bounds, or if someone is going to try to do an abortion outside of a legal clinical setting, that person will need to be really careful about what they put down in writing.

I’m someone who generally hated being pregnant, I did not have comfortable pregnancies. I don’t know how many times I texted someone saying, “God, I wish I wasn’t pregnant.” If I had had a miscarriage, what would stop some suspicious doctor or some overzealous prosecutor to say, hm, she had a miscarriage, I wonder if she induced her own abortion, and then found that text?

 

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