When President Trump took office just over a year and a half ago, activists could only make educated guesses about whether his promised onslaught against reproductive health care would truly come to pass. The current picture is worse than expected due to attacks from rogue agency heads throughout the Trump-Pence administration who are collaborating to deny access to care to people across the country.
These agency heads include Betsy Devos at the Department of Education, who is working in tandem with the new division of the Department of Health and Human Services (HHS) Office of Civil Rights to reduce access to contraception; Scott Lloyd, who has directed the Office of Refugee Resettlement to deny abortion care to immigrant minors; and Attorney General Jeff Sessions, who has announced a “religious liberty task force” to shore up already existing “conscience clauses” allowing employees to refuse care.
Fears About Kavanaugh
In the wake of Justice Anthony Kennedy’s retirement, advocates and patients across the US now face the near certainty that Trump’s second anti-abortion Supreme Court nominee, Brett Kavanaugh, will take the bench. The increasingly likely possibility of Roe v. Wade being nullified by any of several cases currently winding their way through the circuit courts has made conversations about self-managed abortion care — the use of abortion pills to end a pregnancy at home without a clinician — more urgent than ever.
“There’s been a lot of talk since Justice Kennedy announced his retirement about what life was like before Roe, and the specter of returning to those bad old days,” National Institute for Reproductive Health President Andrea Miller said on a recent press call of experts discussing Roe and new research from the University of Texas, Austin, on self-managed abortions.
“A lot has changed since then,” continued Miller. “On the plus side, there’s far greater access to information about women’s options and safer, more effective ways for women to end their own pregnancies. But there’s also a downside: Like before Roe, there are vast inequities in access to care and criminal abortion laws on the books — with more likely to come with a change on the Supreme Court.”
As reported by Truthout over the past several years, it is the most marginalized communities that are hit hardest by any restriction in reproductive health care service. Yamani Hernandez, executive director of the National Network of Abortion Funds — which receives over 150,000 calls for assistance each year, according to Hernandez — explained the disproportionate impact on the experts’ press call.
“Women of color, immigrants, young people, low-income people and those living in rural areas are most harmed when abortion is restricted,” Hernandez told Truthout. “Low-income people and women of color are more likely to need abortion care in the first place, and least able to afford the out-of-pocket costs.”
The concerns expressed by Miller and Hernandez are well founded. Even before Kennedy’s retirement announcement, state legislators were engaged in multi-decade, incremental attacks on abortion access. According to the nonprofit reproductive and sexual health advocacy organization the Guttmacher Institute, in the first quarter of 2018, “five states had adopted 10 new abortion restrictions and 347 measures to restrict access to either abortion or contraception had been introduced in 37 states.” Just three months later, those numbers expanded to 11 states enacting 22 new abortion restrictions, with an additional four states working to limit which providers can be reimbursed by public funds for family planning services.
And then there’s Kavanaugh’s clear hostility to abortion. The Supreme Court experts at SCOTUSblog have compiled a comprehensive history for Kavanaugh, including his full 110-page Questionnaire For Nomination to the Supreme Court. The stand-out case on bodily autonomy is last year’s Garza v. Hargan.
Judge Kavanaugh sided with the Trump administration in initially denying an unaccompanied, undocumented minor, 17-year-old “Jane Doe,” to have the abortion she needed. The decision was quickly overturned by the DC Circuit Court of Appeals, allowing the minor the right to the procedure. Three days after the reversal, Kavanaugh wrote separately about the decision to express his disapproval; alarmingly, he completely ignored decades of precedent on abortion.
Joel Dodge, staff attorney for judicial strategy at the Center for Reproductive Rights, explained in an op-ed why Kavanaugh’s inexplicable attitude about what constitutes an “undue burden” as laid out in 1992’s Planned Parenthood of Southeastern Pennsylvania v. Casey decision matters in predicting his likely future votes on abortion restrictions:
He repeatedly and pejoratively referred to abortion without a government veto as “abortion on demand.” Without a veto, he reasoned, the government would be “facilitating abortion.” However, the government wasn’t being asked to “facilitate” anything because Jane (with the help of a court-appointed guardian) had already arranged her own medical appointments, transportation, and payment. Kavanaugh also ignored a core Supreme Court holding from Casey that government abortion restrictions must “inform the woman’s free choice, not hinder it.”
More Patients Turn to Self-Managed Abortions
Abortion advocates and providers, on the other hand, are taking seriously the Supreme Court’s ruling that says abortion restrictions should not hinder the choices of pregnant people. As Truthout reported last year, the group Women Help Women has openly published the protocol that those within the United States can use to manage their own abortions — an act pregnant people have engaged in for millennia. Despite the legal hurdles to obtaining the medication needed without a doctor, an increasing number of pregnant people are choosing to channel those days when women handled family planning needs by making sure those in their community have the necessary information.
In the newly published study, “Motivations and Experiences of People Seeking Medication Abortion Online in the United States,” co-author Abigail Aiken, assistant professor of public affairs at the University of Texas at Austin, explores and explains this new landscape.
The study’s findings “demonstrate clearly that while many are concerned about a future ‘post-Roe world,’ for many, that world is already here,” Aiken said on the expert press call. “State policies have put clinical abortion access so far out of reach that some cannot exercise their right to choose abortion by conventional pathways. Our findings also demonstrate that, for others, new technologies have brought a new meaning to the term ‘reproductive autonomy,’ with the potential for self-managed abortion to be a safe and positive option.”
As Truthout reported last year, a lack of access to clinical settings is not the only reason some patients prefer to self-manage their abortions; some simply find comfort in the privacy of their homes. They should be allowed to access the necessary information and medications as pregnant people have done for millennia. However, the current political climate has led to increasing criminalization of ending one’s own pregnancy, a trend of overzealous prosecutors using existing laws to jail patients and caregivers, and ill-informed or ideologically motivated hospital workers reporting suspected self-induced abortion despite no state requiring such reporting.
Navigating this frustrating and legally dangerous landscape is becoming increasingly necessary, no matter a patient’s preference.
Navigating an Increasingly Hostile Landscape
With a presidential administration empowering all the anti-abortion appointees in various government agencies to incrementally reduce access, and with the Supreme Court almost certain to gain a 5-4 anti-abortion majority, patients’ preferences are being sidelined. Harm reduction has long been the strategy in countries where laws punish patients, and US advocates and physicians are tapping into solutions and workarounds used overseas in the internet age.
“Recent studies I and my colleagues have conducted in Ireland — where abortion was (until the recent landslide referendum) illegal — show that outlawing abortion in law clearly does not outlaw it in practice,” Aiken said on the call. “Women there have been safely and effectively self-managing their abortions for a decade using pills obtained from online telemedicine services like Women on Web. The results from our most recent study show a clear public health justification to make self-managed abortion in the US similarly safe and supported.”
Jill E. Adams — executive director of the Center on Reproductive Rights and Justice at the UC Berkeley School of Law and chief strategist of the Self-Induced Abortion Legal Team — announced additional resources for navigating the fluctuating terrain.
“Criminalization is the absolute wrong approach,” Adams said on the press call. “Instead of policing and prosecuting people for self-managed abortion, we should work to ensure that once someone decides to end their own pregnancy, they have access to accurate information, reliable methods, confidential backup medical care and competent legal representation, should either be needed.”
To that end, the Self-Induced Abortion Legal Team has been working to develop resources that help pregnant people navigate an increasingly hostile landscape.
The team “has soft-launched a free legal helpline for people to call if they’ve been questioned by police, or fear they will be, in connection with an abortion,” said Adams. “Callers [to 1-844-868-2812] can receive legal information from a non-attorney advocate and be connected with a lawyer in their state, if that’s needed.”
Abortion providers are acutely aware that their services are being pushed further and further out of reach for so many. Guttmacher reports that 87 percent of counties in the US are entirely without an abortion provider. Independent [non-Planned Parenthood affiliated] clinics — which provide more than 60 percent of all abortions and nearly 100 percent of abortions after 19-weeks — have been forced to close at alarming rates in recent years.
On a press call, board-certified obstetrician and gynecologist Jamila Perritt lamented what her patients are facing.
“Countless women encounter great difficulties in accessing the abortion care they need due to restrictive laws like waiting periods, admission privilege requirements and gestational age bans. This is coupled with harassment of patients and providers that regularly occurs in many clinic settings,” Perritt said. “Given this landscape, it’s not impossible to imagine what abortion would look like post-Roe.”
Devastating State-Level Laws Would Take Effect if Roe Is Overturned
According to Guttmacher, a significant number of states have potentially devastating anti-abortion laws already on the books should the next incarnation of the Supreme Court nullify Roe — the most likely scenario, according to constitutional lawyer, author and Abortion Care Network board member David Cohen. (Cohen has spoken extensively with Truthout on this topic over the past two years; his recent op-ed at Rewire.News also covers the potential Supreme Court actions.) Those justices who consider themselves “originalists” when it comes to the Constitution — Clarence Thomas, Neil Gorsuch and would-be-justice Kavanaugh — are unlikely to pull a Citizens United and declare wholly new law. What they would most likely do, according to Cohen, is declare that the Constitution says nothing at all about abortion and, therefore, federal law should not protect it. In essence, state laws would become the ultimate authority.
Only nine states have laws on the books that expressly protect the right to abortion: California, Connecticut, Delaware, Hawaii, Maine, Maryland, Nevada, Oregon and Washington. Seventeen states have laws that, should Roe be nullified, would in whole or in part make abortion illegal. Louisiana, Mississippi, North Dakota and South Dakota all have “trigger laws” on the books that automatically ban all abortion. In addition, the Guttmacher Institute points out, Arkansas, Kansas, Kentucky, Louisiana, Missouri, North Dakota and Ohio also have laws that “express their intent to restrict the right to legal abortion to the maximum extent permitted by the U.S. Supreme Court in the absence of Roe.” (Yes, Louisiana and North Dakota have passed multiple laws anticipating multiple opportunities to restrict access.) And nine states — Alabama, Arizona, Arkansas, Michigan, Mississippi, New Mexico, Oklahoma, West Virginia and Wisconsin — still have a varying slate of pre-Roe abortion restrictions (many with exceptions for rape, incest, life of the pregnant person, etc.) on the books.
This last category of abortion-restricting laws offers reproductive rights and justice supporters an important set of action items: lobbying their state legislatures to pass new legislation negating these outdated laws. Massachusetts did just that last month, and New Mexico State Rep. Joanne Ferrary (D-Las Cruces) is proposing legislation to do the same in her state.
In the absence of Roe, negating these outdated laws would not guarantee the right to abortion in states that take such action. However, doing so would prevent automatic restrictions and outright bans from taking effect following potential Supreme Court action — an extremely important backstop for communities that are already underserved and over-policed. Repealing these laws and making self-managed abortion care as available as possible are the most pressing harm-reduction strategies.
“We’re all invested in people getting the best care possible, affordably and without delay, and medication abortion offers that,” said Hernandez. “Having the abortion pill available is also a crucial part of racial and economic justice – especially if we are looking at a future where Roe v. Wade could be overturned.”
“The good news is, we’re not in 1960, when we didn’t have access to medication abortion,” Hernandez added. “The technology has changed—we now have abortion pills and internet access. Having the abortion pill available as an option is game-changing, especially for women who otherwise have to travel long distances, cross immigration checkpoints or deal with other challenges.”