Portside

We all know the reproductive rights mantra that says we need to keep the government away from our bodies and out of abortion. But behind closed doors, policies that claim to do just that are being written to protect the state’s right to criminalize abortion later in pregnancy. 

We’ve all read along as Abortion, Every Day has tirelessly covered the post-Dobbs aftermath. The news churns with state ballot measures, the salience of abortion in elections, ongoing court cases, and stories of people denied care like Kate Cox in Texas. 

Given the national uproar over Cox’s case, we should be curious whether the policies we’re championing would actually prevent stories like hers from happening. And whether they’re aligned with the reproductive justice framework, which, as SisterSong lays out, envisions a world where people have “the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities?” That is to say, are they leading us where we say we want to go? 

In a post-Roe reality, it’s no longer enough to point the finger at the antis and their predictable fascism. We have to hold up a mirror to our own pro-abortion movement as well. This includes challenging the legacy of white-led reproductive rights advocacy and policies that have taken a narrow approach, hyper-focused on the legal right to abortion, no matter the broader implications.

Before her untimely death, the late Reproductive Rights leader Andrea Miller, who was willing to grapple with the hard questions said, “the compromises we make will never satisfy anti-abortion operatives. As allies, our task is to reclaim baseline expectations for what is right and just.”

So with a deep breath, and at the risk of instigating ire from, as Executive Director of Medical Students for Choice Pamela Merritt calls “Team ‘Reasonable’ Restrictions or Shut Up,” let’s get into it.

The Impact of Post-Roe Policies So Far

Proactive policies championed by leading pro-abortion advocates continue to be built around a central theme: enshrining some government involvement, rather than striving to eliminate it altogether. This compromise approach, rooted in deep abortion stigma, has included allowing gestational limits or viability lines that essentially permit the government to police pregnant people based on arbitrary timelines. 

From state ballot initiatives like Ohio’s Issue 1, to federal legislation like the Women’s Health Protection Act (WHPA)—efforts that follow Roe’s framework accept the premise of an “appropriate” point for the state to get involved in pregnancy. But no matter where a line is drawn—whether at 15 weeks, 20 weeks or 24 weeks—there is no point in pregnancy when the government is better positioned to make critical decisions about your health and future than you are. But I digress.

These compromised policies are generally supported by most reproductive health and rights organizations and mainstream Democrats. For instance, more than 150 organizations have signed on to support WHPA, which protects the state's right to criminalize abortion after potential fetal viability. Big, well-funded organizations like Planned Parenthood, Reproductive Freedom for All (formerly NARAL), the Center for Reproductive Rights, and the ACLU are supporting many of these initiatives arguing that some abortion access is better than none. 

But it’s a false premise to say that we can get partial rights or no rights at all. Or that we can ignore the very serious downstream consequences of enshrining the state’s compelling interest in pregnancy.

Am I being too harsh? Aren’t these efforts a “step in the right direction?” 

To answer that, let’s look at how these Roe-equivalent policies that include viability bans shape the relationship between states and individuals (i.e. bodily autonomy): 

Bans, including viability bans, allow the state to deny people abortion care. Very simply, when lines are drawn, people end up on the other side of them (more people than you think). 

Even though some of these bans include exceptions, we know from watching horrible stories play out—like Cox’s in Texas, for example—that these exceptions only make bans more palatable. People are still traveling out of states like California, Illinois, Massachusetts, New York, and Ohio because of viability bans, even people who meet the criteria of exceptions.

The truth is, as long as there are lines that threaten serious punishments, many doctors will stop short of them. There’s a chilling effect. As one provider said to me, “you can’t go to jail for an abortion you don’t provide.” So even if your only goal is to get the Kate Coxs of the world the abortions they need, these policies are inadequate.

Bans, including viability bans, lay a path for discrimination and differential treatment beyond abortion. In other words, the impacts of these laws have a tendency to creep, to lead to different rules for pregnant people. Here are some examples: 

Unwanted Medical Treatment: In New York, a woman named Rinat Dray was forced to undergo cesarean surgery that resulted in bladder damage and lasting trauma. She did not consent to this procedure as it violated her religious beliefs. A judge cited Roe’s viability standard and the recently enacted Reproductive Health Act (RHA) in their ruling.

In Texas, a woman named Marlise Munoz was pronounced brain-dead when she was 14 weeks pregnant. Her body was kept on life support for months to incubate her pregnancy. This went against her family’s wishes and her own living will. A Texas district attorney argued the fetus was the subject of the state’s compelling interest in part due to the gestation of the pregnancy.

Policing Pregnancy Outcomes: States protect their interests through surveillance, policing, prosecution and punishment. If the state has expressed an interest in pregnancy or in protecting a viable fetus, every pregnancy becomes a potential crime. This disproportionately threatens already over-policed communities, including Black women, young people, disabled people, immigrants, LGBTQIA people, and people with low-incomes. 

A recent, infuriating example is Brittany Watts in Ohio, being prosecuted for “abuse of a corpse” after a miscarriage. Before ruling that her case could continue, a judge commented that the status of her fetus was central to the case:

“There are better scholars than I am to determine the exact legal status of this fetus/corpse/body/birthing tissue/whatever it is... Matter of fact, I’m assuming most of these Issue 1’s are about at what point something becomes viable.” 

His mention of the recently-passed abortion rights amendment suggests that the courts would look to the viability line voters approved to determine the legal status of the fetus—and subsequently, how Watts could be punished for her miscarriage. 

Even the likelihood of criminalization for self-managed abortion (SMA) hinges on estimated gestational duration. If/When/How reports that “people who were…further along in their pregnancy have been the main targets of self-managed abortion criminalization.” They note that in cases where gestation was mentioned, 87% were during the second or third trimesters. 

Child Welfare/Family separation: Reinforcing the idea that the state has a role in protecting a fetus, at any point, seeps into every facet of potential state involvement. About 25 states consider substance abuse during pregnancy to be child abuse. This exposes people to investigations and punitive responses through the family policing system, including civil commitment and family separation.

Policies that rely on a physician’s judgment to determine fetal viability are bad law. In most of the policies offered by leading reproductive rights lawyers, the determination of viability is solely left to clinicians. And yet ACOG says:

“There is no definite diagnosis of viability and no test that can definitively determine whether a fetus could survive outside of the uterus…While it is impossible to definitively declare viability, there are several situations in which a pregnancy will never be viable.” 

Laws with the potential for criminal and civil penalties that use vague terms set providers up for legal scrutiny—and in many states, within a system that is stacked against them.

This vagueness is a problem when applied to laws which are supposed to be unambiguous. It leaves us open to attacks about the vagueness of the term, a strategy we’ve seen used in Florida already. (Attorney General Ashley Moody is petitioning the state Supreme Court to reject the proposed amendment based on its ‘viability’ language.)

The Polling of It All

When local Reproductive Justice advocates push for expansive policies, they’re all too often met with the same excuse from large national organizations: polling. First, it’s important to remember that polling is a tool to understand where the public might be on issues, but it is dangerous to write health care laws based on public opinion.

Secondly, I am not convinced that the public wants these lines at all. Earlier this year, Patient Forward worked with the polling group PerryUndem to research how voters feel about viability limits—and what we found was that respondents favored a ballot measure without that restriction by a significant margin. In open-ended questions, voters articulated discomfort with “leaving a foot in the door” for the government to criminalize pregnancy and abortion; others said they wanted the government to stay out of abortion care completely. 

Voters are surpassing mainstream reproductive rights advocates in their understanding of government interference. Other polls by Gallup and Marist show similar trends. At the very least, it means we can’t blame our policy compromises solely on the public.

 At the very most, we must think differently about how we’re framing the question. It shouldn’t be about when the government is involved in pregnancy, but about if the government should be involved at all. When we ask this question, we start to see a much different response. 

Taking the Next Step to Move Beyond Roe

Ultimately, our problem is not messaging, but the gap between our values and our policies. We, as pro-abortion advocates, have long said “Roe was the floor”, “keep the government out of the exam room” and “abortion is healthcare.” Yet in state after state, in national office after national office, I’ve watched advocates turn around and demand policies that invite the government right back into the exam room they were just minutes ago, into a megaphone, telling them to stay out of. And I’ve watched while organizations have used patient stories like mine or Cox’s to push policies that subject us to a moral analysis, and allow the state to deny later abortion patients the care they need and deserve. 

This amounts to lip service to reproductive justice values. As a movement, we seem to recognize that reproductive justice is a framework we should be embracing. But we should also take it as a challenge and a critique of what we’ve been doing. If we want to build a strong, safe world for pregnant people and our families, let’s start with a floor we can all stand on. 

[Erika Christensen, is a later abortion patient advocate and co-director of Patient Forward. She tweets @RHAvote.]

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