Preparing for the Post-Roe World

I’m back. I mean, my god, how could I not be?

By now, you have no doubt heard about the leaked Supreme Court draft opinion for the Dobbs vs. Women’s  Health Organization, written by Justice Samuel Alito, and published in Politico:

The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision — Planned Parenthood v. Casey — that largely maintained the right.

“Roe was egregiously wrong from the start,” Alito writes. “We hold that Roe and Casey must be overruled,” he writes in the document, labeled as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

The case, which I wrote about in December last year in a post titled “Potentially The Most Important Supreme Court Case About Abortion Rights Since 1992,” will be decided in June. It may already be decided from the looks of the draft. As a reminder, the case came to the Supreme Court after the state of Mississippi banned abortions after 15 weeks. It’s the case that could dismantle Roe v. Wade, the 1973 Supreme Court case that legalized abortion in all 50 states, and Casey v. Planned Parenthood from 1992, in which the Court adopted the “undue burden” standard that limits states from putting legal obstacles in place that cause an “undue burden” should a woman seek an abortion before the fetus attains viability—around 23 weeks.

But if the Court votes with Dobbs to overturn the precedent set in those cases, then there would be no legal grounds that would prevent states from banning abortion at 15 weeks, or at six weeks, as Texas did in May 2021—a law that went into effect September 1, 2021 (the very impetus for my launching this newsletter), or for banning abortion entirely, which some states are on track to do. The Guttmacher Institute has up-to-date information regarding the 26 states that are certain or likely to ban abortion or severely limit abortion if Roe falls. And many of these bans will not be subject to a cumbersome legislative process before they are enacted. Several are already on the books, set to take effect as soon as Roe is overturned; in Michigan, a 1931 law is slated to go back into effect that makes abortion a felony and makes no exception for rape or incest (Roe had nullified that law). This is not hyperbole. Just this morning, Governor Gretchen Whitmer of Michigan published an opinion piece in the New York Times in which she discussed the 1931 law and the lawsuit she filed last month that asks the Michigan Supreme Court to resolve whether the state’s constitution protects abortion rights. She writes: “Given that Michigan has a Republican-controlled legislature, I am not optimistic that I — as a pro-choice Democratic governor — can get a bill passed to overturn the 1931 Michigan law.”

I covered abortion in my argument classes for 15 years. I taught my class as a critical thinking class, a class that encouraged students to have empathy and find common ground and to at least try to consider that opponents are nonetheless people of goodwill. Abortion seemed the most challenging topic for achieving that, but now it’s feeling a little like a pending Civil War, brothers against brothers (or brother against sister in my case), families and friends at irreconcilable odds. I had lunch with a good friend this week whom I know to be anti-abortion (her then 9-year-old son said in my car in 2016 that their family supported Trump because “Hillary Clinton kills babies”). I love this friend. Despite our differences, we have found common ground, but will we be able to continue to do so?

If you are going to convict a doctor or medical care provider for providing abortions (or even sue an Uber driver who provides a ride to the clinic) or put a mother in jail for procuring abortion pills for her pregnant 16-year-old daughter, your warped values may be clouding your goodwill. I cannot find common ground with such extreme judgment and action. The people—including women—who write and pass laws that that severely limit access to and/or criminalize abortion are not on the side of women, are not on the side of girls. If women and girls cannot make decisions for themselves on such a private, personal—indeed, Roe was argued under the privacy clause of the Fourteenth Amendment—then we simply will not have equal rights. We must have options when we find ourselves pregnant, including having access to safe, legal abortion.

The best pieces I read and listened to over the last couple of weeks were the cover story in The Atlantic, “The Future of Abortion in a Post-Roe America” by Jessica Bruder and Terry Gross’s interview with Bruder on Fresh Air, where they discussed The Atlantic article and also Bruder’s book of nonfiction, Nomadland, which was made into an Oscar-winning film starring the amazing Francis McDormand. I highly recommend the article and the interview.

Bruder began her article (and interview) talking about the Del-Em, a rather simple device for ending a pregnancy that was invented by a public school teacher and activist in 1971 before Roe v. Wade legalized abortion in all 50 states. People use variations of this device for ending pregnancy during the first trimester, which, according to the CDC, is when more than 90 percent of abortions happen. Pregnancies can also be terminated by using pills (mifepristone and misoprostol, which I’ve written about in my newsletter). In fact, Bruder sits in a zoom workshop with Susan Yanow, the reproductive rights advocate and project manager of SASS (Self-managed Abortion; Safe and Supported)—the same Susan Yanow I talked with over Zoom! I had been so impressed with and awed by Yanow—and here she was in Bruder’s article. This world is smaller than I thought.

During the online workshop with Yanow, Bruder learned about abortion pills and how to use them properly (they used Skittles and M&Ms to mimic the mifepristone and misoprostol combo). Yanow warned the participants of the laws prohibiting self-managed abortion care in various states.  She advised the participants to share information rather than give explicit advice, encouragement, or assistance in order to avoid legal consequences. The threat of jail time for this is real and is about to get even more real.

In both the article and the Fresh Air episode, Bruder tells about Jessica Whalen, a mother of a pregnant 16-year-old in Pennsylvania. The daughter did not want to be pregnant, and so they found abortion pills on the internet and ordered them. The pills, which induce a miscarriage, cause cramping and bleeding, but the daughter was worried that something might be wrong, so her mother took to the hospital, where she explained that her daughter had taken pills to induce an abortion. Afterward, the mother was reported to child protective services, charged, and sentenced to serve time in jail.

I found the fuller story on the New York Times. A few of the reasons Whalen and her daughter chose the abortion pills rather than going to a clinic: the nearest clinic was 75 miles away; Whalen and her husband only had one car; Pennsylvania requires a 24-hour waiting period, which meant the two would have  required lodging or to have driven back and forth twice; Whalen didn’t have health insurance for her daughter and the abortion procedure would have cost between $300 to $600 versus $45 for the pills. Undue burdens.

When I zoomed with Susan Yanow, I specifically asked about the need to seek medical help in the rare case the abortion pills caused excess bleeding or some other sign of infection, like high fever. She said that a person showing up to the hospital or clinic should let the staff know that they were bleeding—perhaps miscarrying—but not to mention the pills, that the pills were not detectable in the bloodstream. The mother and daughter in Pennsylvania did not know that, and the mother was jailed for helping her daughter and providing honest answers to a physician.

This is what I wrote in an earlier newsletter:

“What about criminal repercussions?” I asked. She [Yanow] explained that there is no blood test for abortion pills. Doctors, she said, cannot recognize the difference between a spontaneous miscarriage and a pill-induced abortion that causes miscarriage. She explained that if a person dissolves the pills in her cheek—versus her vagina—the pills cannot be detected.

That a pregnant woman may have to lie about the cause of vaginal bleeding whilst receiving medical care in this country in order to avoid a prison sentence is a sad, sad reality.

There is an abortion underground again taking root in this country. Bruder mentions The Jane Collective, a group of volunteers from Chicago, who, in the 1960 and 70s, referred women to clandestine abortion providers and then “learned to perform the procedure themselves.” Today, community providers are collecting and stockpiling abortion pills (they can be purchased over-the-counter in Mexico) and devices such as the Del-Em and vacuum aspiration kits in anticipation of Roe being overturned. The woman Bruder interviewed who showed her the Del-Em (Bruder calls her “Ellie”) referred to this underground movement as “vaginal preppers.”

Here is what Ellie told Bruder about the Del-Em, which, again, has been around for more than 50 years: “Just knowing people who came before you had other ways of managing these things, not necessarily through a doctor or condoned by a government—there’s something really powerful in that.” She was “disgusted” by what was happening in Texas with the six-week ban, and made an important statement to Bruder, the premise of which I wish everyone would consider:

“Our reproductive rights are not given to us by the government. They are not given to us by anyone. We inherently have them.”

Bruder learned about another group called Abortion Delivered, a nonprofit planning to outfit mobile abortion units. They are bullet-proofing their first van now. Then “it would be retrofitted with an ultrasound machine, and a gynecological table, so a doctor with a manual vacuum aspirator device could perform first-trimester abortions inside.” They plan to sit just outside the Texas border. But they likely won’t be able to park in Louisiana, Arkansas, or Oklahoma. The only option will be New Mexico. Or Old Mexico.

Some other sources

Gloria Steinem to Mary Louise Kelly on NPR this week:

I think there have always been efforts to control women's birth giving since women have given birth for thousands of years. I mean, I remember sitting in the Kalahari Desert talking to women who were showing me the plants that they used for abortifacients and to increase fertility. I mean, you know, this is not a new issue. And the very definition of patriarchy is trying to control women and birth giving.

The Daily podcast in which Michael Barbaro interviewed New York Times reporter Adam Liptak, whose reporting I’ve included in several of my newsletters. It provided an overview of the leaked draft and the “political firestorm” it unleashed, as well as a look at what it might mean for the country. Michael Barbaro begins by asking Liptak, “Adam, this is a very strange situation that we’re in, wouldn’t you agree?” And Liptak, who’s always very measured and professional, answers:

“It’s extraordinary. I’ve never seen anything like it.”

From Twitter:

Senator Kirsten Gillibrand of New York’s impassioned three-minute speech

Senator Elizabeth Warren’s well-stated fury

Gillian Frank, PhD’s tweet: “I am a historian of abortion. I have written extensively on life before Roe. The undemocratic decision to rescind Roe v Wade is a disaster that will create misery and will endanger pregnant people & abortion seekers.”

On Fox News:

Senate Minority Leader Mitch McConnell, R-Ky., said it is "possible" abortion will be banned nationwide if the Supreme Court overturns Roe v. Wade this summer. During an interview with USA Today, published Friday, McConnell suggested a national abortion ban could happen but noted that such a discussion is premature.

It’s both wonderful and terrible to be back to writing The Quickening. Thanks for reading, everyone. Feel free to share the newsletter if you like. Comments, questions, corrections are welcome!