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Why We Need a Constitutional Amendment for Abortion Rights

As the ominous march to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization continues, and as Texas and Oklahoma both have strict abortion bans in effect, the end of Roe v. Wade seems inevitable. While some states have passed bills to protect access, others seem to be just counting down the days until their “trigger” laws can take effect with the overturning of Roe.

It didn’t have to be like this. For decades, legal experts and abortion rights advocates have opined on what Roe got wrong and bemoaned the subsequent cases that weakened access. And while many people are convinced the Equal Rights Amendment would enshrine abortion access in the Constitution, it would still fall short of the protections required to realize full reproductive rights. Instead, we need a constitutional amendment with ambition, like Vermont’s Prop 5.

While the ERA would prohibit denying or abridging equal rights on account of sex, a reproductive liberty amendment cannot be prohibitive. The Supreme Court’s interpretation and application of the equal protection clause and the privacy doctrine fail to address women’s inequality and oppression. An affirmative right is necessary.

Antiquated cultural norms around gender have shaped the expectations of women’s roles in society, influenced the legal framework of their rights, and resulted in discriminatory legislative restrictions on reproductive autonomy, ultimately denying them same rights as men. Roe’s future is tenuous—particularly in light of the leaked draft opinion Politico published earlier this month that indicated the Supreme Court plans to use the Dobbs v. Jackson Women’s Health decision to overturn Roe. And Planned Parenthood v. Casey’s “undue burden” standard is inadequate. Attacks on reproductive health care—which are not limited to abortion and affect anyone who can become pregnant—will endure without an explicit constitutional guarantee.

We need constitutional foundations

Human rights and our entitlement to equal protection, personal autonomy, and privacy justify a constitutional guarantee for reproductive liberty. Two constitutional groundings—the privacy doctrine and the equal protection doctrine—have been central in shaping the legal protection of abortion rights.

But the Supreme Court’s evolving focus in the search for a constitutional basis has provided ample opportunity for anti-abortion activists to exploit the current system. Stereotypes used to justify policies that reduced pregnant women to their reproductive roles defined the foundational cases that led to Roe and rendered women invisible outside of their capacity to bear children.

We need to move beyond privacy

Abortion’s legal framework restricts unnecessary state involvement in the private lives of citizens. In reality, there is a substantial gap between the intent of the constitutional right and the ability to exercise it. This approach fails to account for inequalities that make the right to abortion and contraception accessible only to the privileged. Affirmative protections that demand provisions such as paid maternity leave, affordable child care, and full availability of abortion services would help close the gap.

Though the Constitution guarantees equal protection, the concept of equal treatment was not developed in a vacuum, untarnished by socially constructed notions of gender. By upholding gender classification systems, the Supreme Court has seemingly concluded that women are in need of special protections as a result of their “natural and proper timidity and delicacy,” thereby casting men as women’s benevolent “protectors.”

The privacy grounding, at most, protects pregnant people from some limitations on their reproductive decisions. However, the ruling in Roe did not suggest that states had a responsibility to lift barriers. After Casey, which prioritized the “moral” obligation to protect potential life over the human right to bodily autonomy and privacy, the shift away from the privacy-based trimester framework left the door wide open for state-level restrictions.

Any assumption that anti-abortion proponents would change course and see abortion as acceptable under a different framework is vastly misguided. Even among abortion rights advocates, there is disagreement over publicly funded abortion care. If the Court adopted an equal protection framework, there would be no guarantee of abortion subsidies, leaving the issue of accessibility for low-income pregnant people unresolved.

Anti-abortion arguments in the immediate aftermath of Roe centered on the idea of fetal life. The Court advanced a “woman-protective” angle in Gonzales v. Carhart, giving weight to the view that abortion has a “harmful” effect on people who have them. Justice Anthony Kennedy, who delivered the opinion in Gonzales, exemplified this perspective with the implication that women who “choose” to have the abortion procedure known as dilation and evacuation do so merely because they lack the proper knowledge.

We need legislative restrictions

Since Casey, states have passed thousands of measures to restrict abortion rights. Laws that aim to coerce pregnant people not to have abortions and to prevent doctors from performing them, coupled with travel and financial obstacles to accessing abortion facilities, have all but made abortion a right in name only. Anti-choice lawmakers argue that a state’s interest in informed consent, a legal doctrine that seeks to undermine autonomy rather than enhance it, justifies these laws.

The concept of fetal “personhood” is the common thread that motivates restrictions on birth control access, too. At its core, “personhood” both excludes pregnant people from any meaningful attainment of liberty or dignity and defines them as vessels for potential life. In places with legally recognized personhood laws, the ramifications are clear.

We need public funding for abortion

Public funding of reproductive health care is essential to making reproductive rights a meaningful reality for people living in poverty. Because insurance coverage in the United States is typically tied to one’s occupation, most workers are at the mercy of their employers in accessing basic reproductive health care. We cannot rely on a broken health-care system to address economic disparities, nor can we trust that the legislative or judicial process will correct course.

The constitutional right to an abortion means little if pregnant people do not have the resources to access health care. In Harris v. McRae, the Supreme Court effectively made abortion available on a sliding scale by upholding restrictions on the use of federal funds for abortion services. In his forthright dissent, Justice William Brennan made clear how this policy affected poor women:

[T]he Hyde Amendment has effectively removed this choice from the indigent woman’s hands. By funding all of the expenses associated with childbirth and none of the expenses incurred in terminating pregnancy, the Government literally makes an offer that the indigent woman cannot afford to refuse.

Current law does not consider the circumstances under which people make reproductive choices, and research has identified the impacts of access on economic security. Poverty affects the legitimacy of “choice,” and socioeconomic conditions can lead to states coercing people into abortion, something anti-choicers seem content to ignore.

We need abortion to be an affirmative right

Case law shows how pushing for equality based on sex results in as many susceptibilities as relying on privacy alone. Casey’s “undue burden” standard has allowed states to shift the focus to potential fetal life and “woman-protective” measures, carving out a broad avenue through which they impede access to reproductive services. Without the equal capacity to exercise a right, choice is a misnomer.

A constitutional amendment committed to respecting self-determination, bodily autonomy, recognition of racial and socioeconomic disparities, and access to publicly funded abortion and other reproductive health services creates the conditions in which the liberty guaranteed by the Constitution can be fully realized. Only through this kind of amendment can society’s moral obligation to allow all people to exercise their basic human rights be fulfilled.

What the Hell Is Substantive Due Process, Anyway?

In his leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito writes, “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”

This is terrifying, to say the least. It’s also unprecedented. The right to an abortion has been upheld by the Supreme Court several times.

So what makes this case different? What exactly are abortion rights, and where do they come from? Here’s a quick crash course on abortion rights case law, to give you some context on those questions, and to think through what the opinion really means.

What is substantive due process?

The right to abortion elucidated in Roe v. Wade is rooted in the 14th Amendment. Ratified in 1868, the first section of the amendment reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

For our purposes, we’re going to focus on one line in that section, known as the due process clause: that no State shall “deprive any person of life, liberty, or property, without due process of law.” As the leaked Dobbs v. Jackson Women’s Health opinion notes, the modern doctrine of substantive due process interprets this clause to mean that the 14th Amendment “provides substantive, as well as procedural, protection for ‘liberty.’” There are two categories of substantive rights protected under the due process clause: First, the rights guaranteed by the first eight amendments, such as the right to free speech. Second, the rights that are not enumerated, but are so fundamental that the government cannot infringe upon them.

As you might imagine—and as the leaked opinion explicitly acknowledges—that second category is a fraught, unsettled area of law.

What is a “fundamental” right? What makes something so “implicit in the concept of ordered liberty” that “neither liberty nor justice would exist if [it] were sacrificed”? How can a right deemed “fundamental” in Roe be ripped away half a century later? There aren’t any easy answers here. But let’s turn back the clock a bit to see what the Supreme Court has historically said about these questions and what this jurisprudence means for our contemporary moment.

The road to Roe

Griswold v. Connecticut

It’s 1965. Griswold v. Connecticut is before the Supreme Court. The case turns on a Connecticut law banning the use of contraception. Two people arrested under this statute—C. Lee Buxton and Estelle Griswold, who ran a birth control clinic—brought suit, claiming that the statute was not constitutional under the Fourteenth Amendment. For the first time, the Supreme Court agreed.

Justice William O. Douglas, who authored the majority opinion, posited that the right to privacy, though not enumerated, nevertheless inheres in the Constitution. He drew on a combination of the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments to assert that the right to privacy is “created by several fundamental constitutional guarantees,” and that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”

In other words, the protections explicitly enshrined in the Bill of Rights radiate unwritten penumbras—shadows, orbits, ripple effects—that interact to create a zone of privacy that the government cannot puncture. You can abstract a general right to privacy by drawing on several other related rights, such as the Fourth Amendment restriction on searches and seizures without probable cause. Justice John Marshall Harlan II’s concurrence elaborated that the Connecticut statute was unconstitutional “because the enactment violates basic values ‘implicit in the concept of ordered liberty’”—language that forms the crux of the modern substantive due process doctrine.

Roe v. Wade

Fast-forward a few years. By the time Roe was decided in 1973, Harlan’s concurrence had become the standard for grappling with substantive due process. The guiding inquiry was now one of liberty.

So: Is access to abortion care a right “implicit in the concept of ordered liberty?” Jane Roe, whose real name was Norma McCorvey and who brought forward litigation challenging a Texas law that criminalized abortion, thought so. She alleged that the statute violated her right to privacy—and, in a 7-2 decision, the Court sided with her.

Justice Harry Blackmun’s majority opinion in Roe noted that “only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’ … are included in this guarantee of personal privacy.” Abortion, he said, constituted one of these “fundamental” rights. Blackmun concluded that “this right to privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

Blackmun anchored the right to abortion in history; at the time of the Constitution’s adoption, abortion was legal until the time of “quickening” (around 16 to 18 weeks) and, in fact, “even post-quickening abortion was never established as a common-law crime.” Put simply, Blackmun wrote, “At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century.”

Blackmun stressed that “where certain ‘fundamental rights’ are involved, the Court has held that regulation limiting these rights may be justified only by a ‘compelling state interest.’” Only legislation “narrowly drawn to express only the legitimate state interests at stake” would be permitted to regulate a fundamental right. In other words, a state cannot limit fundamental rights without a really, really good reason to do so. This is the highest standard of review courts employ, known as “strict scrutiny.” Strict scrutiny is used to protect the most important rights we have—rights like abortion.

To determine when a pregnancy presented a “compelling state interest,” the Roe Court devised a trimester framework. It ruled that, in the first trimester, there exists no compelling state interest to justify regulation; in the second, there is a compelling state interest in the pregnant person’s health, so the state has leeway to “regulate the abortion procedure in ways that are reasonably related to maternal health”; and in the third, the state gains a compelling interest in the fetus’s health, and so may “regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

Planned Parenthood v. Casey

The Roe decision was polarizing. Conservative backlash became so vitriolic that the Court had to dig its heels in when deciding Planned Parenthood v. Casey in 1992. Casey’s central question was whether a Pennsylvania statute that included a number of requirements for people seeking abortions—including a mandatory twenty-four hour waiting period, parental consent for minors, and spousal notification for married people—was constitutional.

In a heated 5-4 decision, the Court upheld “Roe’s essential holding.” Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter offered a rare co-authored opinion, which followed stare decisis—Latin for “to stand by things decided.” In a nutshell, it is the theory that courts should adhere to precedent—although, as Justice Samuel Alito notes in his draft opinion, “stare decisis is ‘not an inexorable command.’”

The joint opinion in Casey lauds the doctrine, stressing that “overruling Roe’s central holding would not only reach an unjustifiable result under stare decisis principles, but would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.” The justices added: “The legitimacy of the Court would fade with the frequency of its vacillation.”

In addition to precedent, the Casey Court emphasized the importance of providing abortion care because of reliance interests. As the joint opinion stressed, “an entire generation”—now several generations— “has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions.” When banning anti-sodomy laws in Lawrence v. Texas, the Supreme Court underscored the importance of reliance interests, writing that “when a Court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance on the existence of that liberty cautions with particular strength against reversing course.”

However, while the Court reaffirmed the right to abortion care, it modified Roe’s trimester system, instead substituting it with a viability line, writing:

Viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.

Post-viability, the Court contended, the state can regulate abortion, provided it carves out a health and safety exception for the pregnant person. Pre-viability, the state cannot place “undue burdens” on pregnant people seeking abortions—it cannot enact any regulations that have “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.”

Under this new framework, most of the provisions of the Pennsylvania statute at issue in Casey were deemed constitutional, because they supposedly did not pose “undue burdens” on pregnant people. The only one struck down was the spousal notification requirement, which they decided did constitute an undue burden, especially in the context of domestic violence:

For the great many women who are victims of abuse inflicted by their husbands, or whose children are the victims of such abuse, a spousal notice requirement enables the husband to wield an effective veto over his wife’s decision … The women most affected by this law—those who most reasonably fear the consequences of notifying their husbands that they are pregnant—are in the gravest danger.

Casey’s viability line remains the standard to this day. The Court reaffirmed it in the 2016 case Whole Woman’s Health v. Hellerstedt, when it struck down a Texas law that would heighten requirements for abortion providers. The new requirements were so onerous that there would only be around seven eligible centers left in the whole state. The Court denounced the law as unconstitutional for the undue burdens it posed on people seeking abortions, and noted that it would particularly harm low-income people who cannot afford to travel for abortion care.

In her concurring opinion, Justice Ruth Bader Ginsburg added:

When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety … Laws … that ‘do little or nothing for health, but rather strew impediments to abortion’ … cannot survive judicial inspection.

The future of Roe 

That brings us up to the present day, when the leaked draft opinion seems to suggest that Dobbs v. Jackson Women’s Health Organization will overturn, well, everything.

The case spotlights a 2018 Mississippi law that prohibits abortions after 15 weeks. In his leaked majority opinion, Alito explicitly moves to overturn Roe and Casey, spelling the end of the decades-old right to abortion established under the doctrine of substantive due process.

Alito has long supported curbing abortion rights. When he was a judge on the Third Circuit, he wrote a dissent for Planned Parenthood v. Casey before the case reached the Supreme Court. In the dissent, he stressed that he would have upheld the spousal notification provision, arguing that “the plaintiffs failed to show even roughly how many of the women in this small group would actually be adversely affected by [the provision].” The difference between then and now, however, is that today, thanks to the conservative majority in the Supreme Court, Alito actually holds the power to overrule Roe.

Although talk of curtailing abortion rights has been percolating, especially as the Court’s membership began to skew more and more conservative, many speculated that the Court would harness Dobbs v. Jackson Women’s Health as a vehicle to roll back Casey‘s viability line, not blatantly overrule Roe.

But the leaked opinion is far more dramatic. It flies in the face of stare decisis; indeed, Alito is extraordinarily dismissive of Justices of the past, mocking phrases like “the mystery of human life,” a Casey hallmark (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”). As legal scholars Melissa Murray and Leah Litman write, “The caustic tone and aggressive reasoning suggest this conservative majority feels unconstrained … And it has no sense of institutional propriety that might lead it to act with more humility and caution.”

Of course, the Supreme Court has overturned precedent before, often to socially progressive ends—consider, for instance, how Brown v. Board of Education (deeming racial segregation in public schools unconstitutional) replaced Plessy v. Ferguson (“separate but equal”). However, the Court is usually far more careful to follow stare decisis in cases about repealing rights. A precedent that restricts a right is more susceptible to being overruled; a precedent that grants a right needs to be examined much more granularly.

Moreover, Dobbs v. Jackson Women’s Health not only overturns Roe and Casey, but it also throws into question the entire doctrine of substantive due process, which has, for decades, been a vehicle for rights not explicitly enumerated in the Constitution. Substantive due process has provided the theoretical justification for cases ranging from Lawrence v. Texas (banning anti-sodomy laws) to Loving v. Virginia (striking down anti-miscegenation laws) to Obergefell v. Hodges (legalizing gay marriage). As legal scholar Bernadette Meyler hypothesizes, “This could really foreshadow an even broader roll-back of individual liberty and individual rights, including same sex marriage and contraception.”

Granted, all of this is speculation. The leaked draft opinion is, after all, still just a draft. Perhaps the opinion will change drastically before it becomes law (we can only hope). But one thing the leak has revealed is how little respect this Court has for precedent. That makes it impossible to predict what will happen tomorrow. The future—of abortion rights, of substantive due process, of civil rights for marginalized people—hangs in the balance.

‘This Is a First’: Oklahoma Legislature Passes the Country’s Strictest Abortion Ban

Update, May 26: Gov. Kevin Stitt signed HB 4327 into law on Wednesday. It goes into effect immediately.

A few months ago, we warned you about what could be the strictest abortion ban in the country. Now, thanks to Oklahoma lawmakers, it will be.

Passed on Thursday, HB 4327 not only instates a total abortion ban, it also sets up a Texas SB 8-style enforcement mechanism with a $10,000 bounty on abortion providers and anyone who helps a pregnant person get abortion care. It would go into effect immediately once Gov. Kevin Stitt (R), who’s staunchly anti-abortion, signs it.

“This is not ‘one more ban.’ This is a first,” Emily Wales, interim president and CEO of Planned Parenthood Great Plains, said last week during a press call. It’s also not just one ban, but two overlapping bans.

Your confusion is the point.

The ban allows exceptions to save the life of a pregnant woman in a medical emergency, as well as in cases of rape and incest—but makes the insidious distinction that the victim must have reported the sexual assault to law enforcement. The bill reads, “A person shall not knowingly perform or attempt to perform an abortion unless … the pregnancy is the result of rape, sexual assault, or incest that has been reported to law enforcement.”

All this is moot, however, considering that another bill set to take effect this summer (SB 612) will make performing an abortion in Oklahoma a felony—no exceptions. Once in effect, the only two remaining abortion clinics in the state will be forced to cease operation, according to the Center for Reproductive Rights.

Without a doubt, this ban will decimate abortion access in the region, which is already reeling from Texas SB 8, and force pregnant people to travel even farther for care—if they can afford to travel at all.

Dr. Iman Alsaden, medical director of Planned Parenthood Great Plains, noted on the press call Thursday that Oklahoma is a state where one in five children live in poverty, a Black infant is twice as likely to die in the first year after birth than a white infant, and 80 percent of incarcerated women are mothers.

Oklahoma also ranks third in the nation for the prison incarceration rate of people in their state. One of those people is Brittney Poolaw. Who will be next?

This post was adapted from a Twitter thread.

My Governor Supports Abortion Rights, but I Still Had to Travel Out of State for Care

In April 2020, I had a second abortion after the first one failed. Because I first sought an abortion during the height of the pandemic lockdowns, some providers weren’t open. To add to the difficulty, I was on Medicaid, which does not cover abortions under the Hyde Amendment, so I was going to have to pay $800 at Planned Parenthood to have an abortion in Michigan.

I instead bought abortion pills online from Plan C, a group that advocates for access to abortion pills, and took one, hoping it would work. Statistics told me that misoprostol would be effective on its own 85 percent to 93 percent of the time, and because I was only a few weeks along, I wasn’t concerned that it wouldn’t.

Days later, nothing had happened. I knew that pregnancy tests might display a positive result for a week or more, so when I tested positive again the next week, I brushed it off. The following week, I made an appointment at an Indiana abortion clinic, where the cost of an abortion was half that of the Michigan clinic’s. I wanted to be sure that the abortion pill alone had worked, and that I wasn’t part of the small percentage of pregnant people who experienced a failed abortion.

When the nurse inserted the wand for a vaginal scan, she couldn’t find anything. She sent the doctor in to be sure. Thirty minutes of uncomfortable pressure later, a tiny speck appeared on the screen. I was exactly six weeks pregnant, which meant that when I took the pill two weeks prior, I was about four weeks pregnant. If I had been living in a state where abortion was banned at six weeks’ gestation, I wouldn’t have been able to get abortion care after the first one failed. My life would be dramatically different than it is today.

Politicians who write six-week abortion bans do so knowing that most pregnant people do not know they are pregnant at six weeks. Being six weeks pregnant means you’re two weeks out from a missed period. These laws, especially those similar to Ohio’s “heartbeat bill,” are full abortion bans.

I live in Michigan, where we have two pro-choice politicians at the highest levels of state government: Democratic Gov. Gretchen Whitmer and Attorney General Dana Nessel. Later this year, voters will head to the polls to decide whether to re-elect them. The election’s consequences are dire: If they do not win, state Republicans have vowed to ban abortion.

Last month, Whitmer asked the courts to overturn the state’s ban on abortion, a 1931 Penal Code under Chapter III that bans all abortions, even in cases of rape and incest. The law makes having an abortion a felony manslaughter charge and prescribing or selling abortion “pills, powder, drugs, or combination of drugs” a misdemeanor charge. If the Supreme Court reverses Roe v. Wade, as they’re expected to do in Dobbs v. Jackson Women’s Health Organization, reversing Michigan’s ban would make abortion a protected right in the state.

Michigan is one small step closer to protecting the right to abortion in the state. On Tuesday, Michigan Court of Claims Judge Elizabeth Gleicher granted a preliminary injunction blocking enforcement of the 1931 ban.

Our Midwestern neighbor, Illinois, has always been ahead of us when it comes to expanding access. Even if Gov. J.B. Pritzker, the pro-choice Democrat leading Illinois, is voted out of office, it would be difficult to ban abortion in the state.

Terry Cosgrove, CEO and President of Personal PAC, a political action committee working to elect pro-choice legislators in Illinois, explained the state’s two existing abortion laws: HB 40, which in 2017 repealed restrictions on Medicaid abortion coverage and the trigger law that would ban abortion statewide if it were no longer federally protected, and the Reproductive Health Act, which in 2019 repealed the criminalization of unwanted pregnancies. But, as Cosgrove said, “nothing is permanent, and we have the most consequential election in 50 years in Illinois” in November.

Cosgrove discussed concerns about the Illinois Supreme Court seats that are up for election in November. “They are just waiting to have the justices who will decide to put aside the right to privacy,” he said of Republican lawmakers in Illinois.

In Indiana, where I got my abortion after my first failed attempt, the situation is different. If Roe v. Wade is dismantled, there is no doubt that the state would ban abortions as quickly as possible. According to the Guttmacher Institute, state lawmakers enacted 55 abortion restrictions and bans over the last decade.

Jean DeWinter volunteers both as a storyteller for Planned Parenthood and as a patient escort for Whole Women’s Health in South Bend, Indiana, where I was treated after my failed abortion. It is 1 of 7 clinics in the Indiana, and just one of two in the northeastern part of the state.

DeWinter fears for the loss of that right in her state. When she got her abortion as a teen, she faced pushback from her family and others, who attempted to coerce her into not getting one.

“It was a complicated situation,” DeWinter said. “I advocated for myself. I did not have any help in terms of ‘adult help.’ It was done in secret behind my parents’ back.”

DeWinter noted the slim possibility that Indiana’s Republican Gov. Eric Holcomb would veto an anti-abortion ban; in March, he vetoed a transgender sports ban in the state, which has led to tension in the Indiana statehouse, where Republicans hold the majority.

If abortion is banned in Indiana, clinics would be immediately shuttered and there would be no use for her as a clinic escort. Doctors at Whole Women’s Health only come to Indiana as visiting doctors to provide abortions—so if abortion is banned in the state, there would be no reason for them to return. Like DeWinter, these doctors face harassment and threats from protesters.

“Once you’ve been called a murderer to your face, I don’t think it could get any worse than that,” DeWinter said about the harassment. If abortion is banned, those abuses with only get worse.

No clinic escorts, no doctors, no abortion. Illinois and Michigan would have to do what California and Colorado have done this year and become a “sanctuary state,” where the right to have an abortion is a state law, protecting in- and out-of-state patients. Midwesterners in states like Ohio, Indiana, and Kentucky would have to travel to seek abortions in the nearby states of Illinois and Michigan.

States like Illinois and Michigan may have some safeguards to protect the right to choose in the Midwest, but for poor pregnant people, pregnant people with no support system, pregnant people who aren’t aware of how to obtain an abortion, and more, it’s simply not enough—particularly in light of the leaked draft opinion published by Politico that indicates the Supreme Court plans to overturn Roe v. Wade.

Having to travel to another state for a safe and effective abortion was an experience that has forced me to advocate for pro-chocie policies and candidates, and to share my experience. But I’m not unique. Voting for pro-choice candidates and choosing to become a clinic escort are two important ways that abortion can be protected, legally and literally.

Meet the 21-Year-Old College Student Fighting Period Poverty

When 21-year-old Carrington Baker watched the Bustle documentary short How Do Homeless Women Cope With Their Periods? in March 2021, she was volunteering at a food pantry and seeing firsthand the lack of period resources for unhoused people. She decided, “This is absolutely ridiculous.”

The documentary opened the St. John’s University student’s eyes to the issue of period poverty, or the lack of access not only to menstrual products and facilities but also education for many menstruating individuals.

“I was taking for granted the fact that I was able to afford period products,” Baker said about For Women by Women, Period, the nonprofit she founded with the aim of combating period poverty. “I didn’t realize there’s so many people going without them.”

The World Bank estimates that at least 500 million people globally experience period poverty. A study published in BMC Women’s Health found that 14.2 percent of the college-aged people surveyed had experienced period poverty over the past year, and women of color were more likely to report dealing with period poverty.

People with no period protection may resort to creating their own, using materials like toilet paper, fabric, or cardboard, which can lead to short-term health risks like bacterial vaginosis and urinary tract infections. Period poverty can also create longer-term health risks, including depression—the study in BMC Women’s Health showed that among the study’s participants who experienced period poverty monthly, 68.1 percent reported symptoms consistent with moderate or severe depression.

People who menstruate not only struggle to afford period products, which are not exempt from sales taxes in many states, but may also lack access to safe locations, like bathrooms, in which to change or clean their menstrual products and clothing, said Caitlin Gruer, a program manager for the Gender, Adolescent Transitions, and Environment Program at Columbia University’s Mailman School of Public Health. Another aspect of combatting period poverty is providing education and resources to young people. Many even struggle in school due to a fear of menstrual leaks.

“Young girls have very little access to education around menstruation,” Gruer said.

After learning about period poverty, Baker decided to take action. She shared her knowledge of the issue with friends. To Baker’s surprise, many were willing to support her efforts. She decided to start For Women by Women, Period to provide period care packages and education about period poverty.

“We want to do more than just end period poverty. We want to educate young menstruators about their bodies properly.”
-Carrington Baker, founder of For Women by Women, Period

In its care packages, the organization has made it a point to include not only pads and tampons, but also underwear, pH friendly wipes, and a heating pad. They call them “Moon PACS,” short for “period and care supplies.” The name was inspired by the moon’s 27-day orbit around the Earth, similar to a menstruation cycle.

“We want to create a holistic care package that includes every possible thing you could need for your cycle,” Baker said.

For Women by Women, Period has raised a little over $6,000 in donations from friends, family, and supporters through the organization’s Donorbox. This funding is being used to create their Moon PACS and to pay for administrative expenses. The organization continues to use its Donorbox fundraising campaign and an Amazon storefront where supporters can purchase products to be donated.

Baker has said the organization struggled with outreach and was initially worried about getting people to care about menstrual inequity. But when for Women by Women, Period started tabling in Washington Square Park in New York City to showcase its work, it drew vital attention.

“It really is nice to see people wanting to support us, that don’t even necessarily understand how big of an issue period poverty is,” she said.

For Women By Women, Period has gained some traction in New York City, partially thanks to recent policies surrounding period products. In 2016, then-Mayor Bill de Blasio signed legislation increasing access to menstrual products by requiring shelters, schools, and jails to provide free period products, a huge step.

Baker’s organization also works with Asiyah Women’s Center, a shelter in Brooklyn’s Sunset Park neighborhood, to provide Moon PACS to its residents monthly.

“In the future, when COVID is not plaguing the world, we’ll be able to go to the shelters and deliver them, and get to know the women and get to know what they would like to see in our care packages,” Baker said.

For Women By Women, Period currently has an all-volunteer team of 20 women. Baker juggles being a full-time student and working over 20 hours a week on her organization.

“When I first started this I was like, ‘Let me hurry to get my homework done, the faster I can work on the organization stuff,’” she said.

Baker, who’s Black, has prioritized cultivating a team of people from all cultures and backgrounds.

“It’s important to acknowledge that different cultures treat periods differently,” she said.

Baker is passionate about closing the inequity gap in medical care, and in fact, plans on going to medical school to become an OB-GYN. In 2019, the Centers for Disease Control and Prevention found that “Black, American Indian, and Alaska Native (AI/AN) women are two to three times more likely to die from pregnancy-related causes than white women.”

“I noticed that the mortality rate among women of color was extremely high,” Baker said. “Hopefully I can fix that one day.”

Baker is now launching two youth programs—one in upstate New York and the other in California—to get high school students involved in For Women By Women, Period’s mission and to provide them menstruation education.

“We want to do more than just end period poverty,” Baker said. “We want to educate young menstruators about their bodies properly.”

Lawsuit Challenges Ohio’s ‘Sanctuary City for the Unborn’ Status

The first major legal challenge to an abortion ban following last week’s Dobbs draft opinion leak—which indicated the Supreme Court was ready to overturn Roe v. Wade—is here, and it’s from a Midwestern state: Ohio.

Last Wednesday, the ACLU of Ohio, Democracy Forward, Ohio chapter of the National Association of Social Workers, and Women Have Options Ohio filed a federal complaint against the city of Lebanon for an unconstitutional total abortion ban within city limits.

The challenge is on First and Fourteenth Amendment grounds (the latter of which we break down here), as well as calling BS on the bill’s nonsensical legal basis.

Why does that matter? Because this is also the first lawsuit filed since Justice Samuel Alito’s leaked draft challenging an abortion restriction that doesn’t rely on Roe v. Wade at all. Instead, it argues that the ordinance violates due process and free speech rights.

You want Roe? Have it. But we’re taking our bodies back.

Oh, Ohio. Lebanon isn’t the only city that has adopted a “sanctuary city for the unborn” ordinance, and the state has a history of anti-abortion “firsts,” despite being a major center for abortion access in the region.

Meanwhile, the Ohio Redistricting Commission is on the verge of being held in contempt of court after failing to draw new legislative maps to replace those that the Ohio Supreme Court deemed unconstitutional, as reported by Spectrum News 1 Ohio’s Josh Rultenberg.

The anti-choice movement is working hard to dismantle voting rights to keep pro-choice voters from electing officials who represent their views. So while abortion may be on the ballot in Ohio in November, there’s no guarantee voters will have a say in what the state does about it.

This post was adapted from a Twitter thread.

Abortion Is a Disability Issue

As we learned from Politico’s reporting last week, the Supreme Court is poised to strike down its landmark Roe v. Wade decision. Overturning Roe will be devastating for all people, but most deeply for historically marginalized groups, including people with disabilities.

Nevertheless, when disability is invoked in discourse concerning abortion, it is typically regarding abortions based on fetal disability diagnoses. Yet by framing disability and abortion only in the context of disability-selective abortions, activists, scholars, and policymakers fail to recognize that it is actual people with disabilities—not fetuses with disability diagnoses—who are harmed by abortion restrictions.

In a forthcoming UCLA Law Review article, I write about how disabled people have both an increased need for abortion services and decreased access. Simply put, people with disabilities must be included in all efforts to protect abortion rights.

The attack on abortion rights reflects the legacy and continuation of a history in which reproduction has been weaponized to subjugate disabled people and other historically marginalized communities. As such, disabled people are acutely aware of what happens when the government gains control of our bodies. In particular, people with disabilities have faced a lengthy history of threats to bodily autonomy, including forced sterilization. Eugenics aimed to “improve” the human race by restricting procreation of those deemed undesirable—disabled people, immigrants, Black people, Indigenous people, LGBTQ people, and incarcerated people. Black disabled people were especially subjected to forced sterilization.

Forced sterilization gained the blessing of the Supreme Court in the infamous 1927 Buck v. Bell decision. At 17 years old, Carrie Buck, who was deemed “feebleminded,” became pregnant after being sexually assaulted by her foster parents’ relative. To ostensibly hide the pregnancy that resulted from sexual violence, she was committed to the Virginia State Colony for Epileptics and Feeble Minded, where her mother was also institutionalized. After giving birth, Buck’s daughter, Vivian, was adopted by her foster family. The institution then sought to sterilize Buck per the state’s involuntary sterilization law.

After a series of appeals, the Supreme Court upheld Virginia’s law allowing institutions to condition a patient’s release upon sterilization as constitutional. In reaching this holding, Justice Oliver Wendell Holmes Jr. stated that the forced sterilization would benefit Buck’s welfare and that of society. He then proclaimed, “Three generations of imbeciles are enough.” Following this decision, more than 30 states enacted compulsory sterilization laws. By the late 20th century, roughly 70,000 Americans, many of whom had disabilities, were forcibly sterilized.

Even today, people with disabilities continue to endure state-sanctioned reproductive oppression. For example, a National Women’s Law Center report published in January found that 30 states and the District of Columbia still have involuntary sterilization laws on their books. In these states, guardians, who are appointed by courts to make decisions on behalf of disabled people, are often the ones choosing whether a person is sterilized, even if it is against that person’s wishes. Notably, research indicates sterilization is a standard procedure for disabled people. Guardians, also known as conservators in some states, are also permitted to make decisions about contraception, as demonstrated by Britney Spears’ case.

Despite enduring a lengthy history of reproductive oppression, people with disabilities have been largely ignored from discourse about abortion rights. This exclusion is particularly problematic because overturning Roe will have devastating consequences for disabled people, who often use abortion services because they experience substantial disadvantages.

First, access to comprehensive reproductive health services, including abortion care, is crucial for disabled people because they are at greater risk of health disparities. According to research, people with disabilities have higher rates of maternal mortality and morbidity than people without disabilities. Moreover, some disabled people take medications that must be stopped prior to pregnancy. Without abortion services, disabled people who have unintended pregnancies will be put in an impossible situation: Having to choose to suddenly end medication and risk harmful side effects, or continue medication that could harm them and their children.

Ultimately, restricting access to abortion will force pregnant people with disabilities to accept risks associated with pregnancy irrespective of their beliefs or health, placing some in considerable harm. This is both dangerous and cruel.

Second, abortion is important for people with disabilities because they experience severe economic disadvantages. According to the National Council on Disability, “people with disabilities live in poverty at more than twice the rate of people without disabilities.” They also have considerably lower employment rates. These inequities are heightened for disabled people who are further marginalized. For example, Black people with disabilities are nearly 55 percent more likely than white people with disabilities to live in poverty. LGBTQ disabled people also experience substantial economic disadvantages.

The bodily autonomy and self-determination that disabled people have fought so hard for will be completely undermined.

In light of the dire economic circumstances experienced by people with disabilities, reducing access to abortion services will only worsen the situation. In fact, 49 percent of people who have abortions live below the poverty line, and many people seeking abortions do so because they cannot afford the costs associated with childrearing. Thus, it is reasonable to assume that some people with disabilities need abortion services because the disproportionate poverty they endure makes them unable to afford to raise children.

Even now, abortion is out of reach for many people with disabilities. Researchers estimate that the average cost of an abortion procedure at about ten weeks in the United States is just over $500, and the median cost of an abortion procedure at 20 weeks’ gestation is $1,195. Given that most abortions are paid for out of pocket, these high costs can be prohibitive for disabled people. Moreover, a 2018 study found that 27 U.S. cities are “abortion deserts”—cities where people must travel at least 100 miles to reach an abortion provider. In addition to the high costs of abortions, which many disabled people cannot afford, some are unable to travel to an abortion provider because of lack of accessible transportation, especially in areas with limited to no abortion providers.

Ultimately, abortion access is essential for people with disabilities achieving some level of economic security. Some disabled people who have abortions likely do so because of their severe economic disadvantage, and increased abortion restrictions will only worsen these inequities. If abortion rights are further restricted, some disabled people will be forced to continue pregnancies and have children against their wishes and economic means, or they will seek unsafe methods of abortion.

Third, people with disabilities have inadequate access to reproductive health services and information, such as sex education and contraception, which makes abortion all the more important. Most people who have abortions do so because having a baby would disrupt their work, education, or ability to care for others. At the same time, research suggests that disabled people have higher rates of unintended pregnancies than nondisabled people. Disabled people also encounter significant barriers to accessing contraception, leading to decreased usage. Significantly, increased access to contraception is statistically associated with a reduction in abortion rates, which means that if disabled people had greater access to contraception they could be less likely to have an abortion.

The high rates of unintended pregnancies among people with disabilities likely also results from inadequate access to sex education and other information about reproduction and pregnancy prevention. Many students with disabilities are denied even basic sex education. Finally, the increased rate of unintended pregnancies among disabled people is also likely a consequence of the inadequate reproductive health care available to them. In other words, the pervasive barriers that disabled people encounter when seeking reproductive health services and information—combined with the numerous inequities they experience—underscore the necessity of abortion rights for disabled people.

Finally, abortion access is significant for people with disabilities because they are uniquely vulnerable to sexual assault, intimate partner violence, and reproductive oppression.

People with intellectual disabilities are seven times more likely than others to experience sexual violence. Disabled people also contend with increased rates of intimate partner violence, which increases their need for abortions. People with disabilities are also at heightened risk of reproductive coercion. Thus, the high rates of sexual assault, intimate partner violence, and reproductive coercion experienced by disabled people likely contribute to increased rates of unintended pregnancies, and consequently an increased need for abortions.

As the Supreme Court moves to overturn Roe, abortion rights activists must recognize the importance of abortion for people with disabilities. The bodily autonomy and self-determination that disabled people have fought so hard for will be completely undermined.

It will have devastating consequences for people with disabilities. It will bring us back to a time when the government controlled disabled people’s bodies—something we are still fighting against today. Disabled people must be intentionally and fully included in all efforts to protect abortion rights. We can no longer wait.

Louisiana Bill Would Jail Patients for Abortions

When news of the leaked draft Supreme Court opinion overturning Roe v. Wade broke last Tuesday, protesters gathered across the country to voice their dissent—including in Louisiana. A day later, state lawmakers ignored those cries, advancing a bill that, if passed, would criminalize abortion as homicide.

Last Wednesday, Louisiana HB 813 advanced out of legislative committee and was sent to the full House for debate, “despite at least one of the representatives voting in favor acknowledging the bill is unconstitutional,” the Daily Advertiser reported.

Because fuck the Constitution, right?

The bill establishes fetal “personhood” and criminalizes all abortions as homicide “without regard to the opinions and judgments of the Supreme Court of the United States in Roe v. Wade.”

Because, apparently, fuck the highest court in the land too!

Louisiana HB 813 is not “just” an abortion ban. This is an entire revocation of pregnant people’s rights and the criminalization of pregnancy outcomes. Everything from miscarriage care to IVF will be affected—and pregnant people will have no say in any of it.

As it stands, the bill has no exceptions: Not for rape, incest, or the life of the pregnant person—no matter how old they are. But Louisiana lawmakers have already made it pretty clear they don’t care about their youth, having introduced HB 989 earlier this year, which further complicates the judicial bypass process and requires the order to expire after ten days even if it is granted.

Oh, and people of color? Black women? The people who make up about 42 percent of Louisiana’s population and 72 percent of those receiving abortions? They’ll have no say in the matter either.

With a GOP-controlled legislature and an anti-abortion Democratic governor, John Bel Edwards, there’s little to stop this bill turning Louisiana into a surveillance state where pregnant people have fewer rights than fetuses.

This post was adapted from a Twitter thread.

Abortion Is a Muslim Issue—and It’s on Us to Fight for Access

A majority of Muslims support access to safe and legal abortion.

Yes, you read that right.

Just over half of Muslims in the United States say abortion should be legal in all or most cases. And yet for some, it may come as a surprise that Islam offers ample space for reproductive choice—debunking the oft-perceived binary of something like abortion being either halal (permitted) or haram (forbidden). Historically, Islam can and has been used as a tool of empowerment for individuals to make decisions about their own bodies—aligned with their faith values.

As Muslims, we understand that the human interpretation of Divine law is inherently imperfect. Further, religious thought is necessarily diverse and accommodates a variety of individual lived experiences. These lived experiences, and the perspectives they engender, matter just as much as religious law and ethics, especially given that each person has unique health and other needs, and Islam embodies anti-harm.

To be clear: Legislative and judicial decisions that continuously narrow reproductive and bodily autonomy, including depriving us of the right to access safe and legal abortion if we so choose, are violating what HEART believes to be our divinely granted rights—and exacerbating the disproportionate health risks that Black, Indigenous, and other people of color around the country face.

In particular, abortion is already inaccessible for too many low-income and Black and brown people of all genders in this country. By extension, and as the most ethnically diverse faith group in the country, many Muslims in need of this care are already being pushed away given persisting reproductive health and rights inequities. Further, the same people impacted by anti-choice policies (even with Roe v. Wade in place) experience unjust criminalization, incarceration, surveillance, and other inherently racist, xenophobic, Islamophobic, and queerphobic systems—systems that diminish our health.

As a result of this Othering and criminalization, Muslims of all backgrounds are directly impacted by patriarchal, racist, and classist legislative decisions that restrict critical access to the intersecting care, services, and resources we need, from education and jobs to food, housing, and health care.

This all comes down to control over our bodies and lives, which we see as reflected in the Islamic principle of hurma (sacred inviolability). Hurma refers to that which is unlawful to violate and has been used by various Islamic law schools to demonstrate the meaning of “bodily integrity.” When the state fails to respect this sacredness by targeting and harming our people, we can and must uplift it for ourselves.

At HEART, we center the principle of bodily autonomy through a reproductive justice framework of choice and access for all Muslims, infused with rahma (compassion), throughout our reproductive lives. This framework affirms our urging that communities must have equitable access to comprehensive and culturally sensitive services that help individuals determine informed decisions for their and their loved ones’ safety, health, and wellness. This is even more imperative given that we must uplift self-determination and access to health and safety for all, to end abuse of power and control manifested through interpersonal to systemic gendered violence.

As we continue to see a ruthless onslaught of policies that criminalize abortion throughout the country, we remain steadfast in rejecting and resisting this deadly status quo. During this turbulent political moment, all those who are most impacted by harmful power holders’ decisions should take comfort that we have always taken care of our communities—and will continue to do so.

We call on all Muslims and our friends and allies of all backgrounds to come together in the ongoing fight for reproductive justice. Here are five ways you can start taking action:

  • Support HEART’s Reproductive Justice Fund or your local abortion fund.
  • Access HEART’s resources to learn more about abortion, how to care for those impacted, and ways to navigate access. Reach out to us with additional questions or if you’re interested in hosting a discussion or workshop on this topic.
  • Consider sharing your abortion story with someone you trust, or even encouraging a loved one to do so. One opportunity to do this is through a project led by our partners at Queer Crescent. Telling your story can help destigmatize abortion for those in our community who experience feelings of shame around it. You can also be a part of disrupting and rejecting narratives that erase the impact of reproductive injustice in religious communities.
  • Understand the fight for abortion care in your state and get involved by plugging into efforts led by direct service and reproductive justice advocacy or civic engagement organizations near you—and/or by connecting virtually with leaders and organizations who are further away. In the coming months, HEART will share more information on this, specific to states with large Muslim populations.
  • Encourage Muslim organizations you are connected with to show their support for reproductive justice.

It is not too late to join this fight. If friends and family can be moved to join us in demanding reproductive justice, the time is now for us to educate and urge them to do so.

Muslims can and do take care of our health and make informed choices every day. We must continue to work collectively to address the impacts of restrictive laws and misinformed Islamophobic rhetoric about Muslim communities—and to increase our access to the resources, power, and choices we need to have self-determination and autonomy over our bodies.

What we do with our bodies isn’t a state’s decision. As Muslims, we know that choice is ours alone.