The thing about working for a pro-choice organization is that everyone has an Opinion about what I do, and they’re always ready to tell me all about it. It’s what keeps my life so fresh and exciting. Honestly, though, it’s one of my favorite things. Strangers love the opportunity to talk about the most stigmatized issue in American politics, and let’s be real – so do I.
Which is basically how I ended up tabling for NARAL at the St. Cloud Pride festival a couple weeks ago, talking to a woman who remembers the day the Roe v. Wade decision came down in 1973. She was looking through the buttons strewn in haphazard display across the table, when she came across something and her smile fell off her face. It was a simple button, a classic: my body, my choice. She passed a finger over it, and told me sadly, “I used to have a button that said this. Decades ago.” She looked up at me, forcing the smile back. “Funny how we’re still saying the same things, all these years later.”
And that – that’s what always hits me hardest. It’s not the antis who call me a murderer or compare me to ISIS (a real thing that really happens); it’s the women who’ve been fighting this fight for decades who turn to me and tell me, “We thought we won. We thought it would be over.”
So how did this happen? How is it that, 43 years after Roe, I’m still handing out buttons that say the same damn thing that women have been saying for decades? How did we lose so much ground that we’re worrying about women dying in back alley abortions again? Lucky for me (and for you, dear reader), I like listening to Supreme Court cases for fun, and I’ve learned a lot about those little legal runarounds that make the difference between whether abortion is accessible de jure or de facto. Like, sure, abortion is legal and accessible by right and by law, but how much does that matter when it is, in fact, totally inaccessible? Roe made abortion legal, but it also stipulated that states have the right to regulate it based on two legitimate interests: health of the mother, and protecting potential human life. And wow oh wow, state and federal governments alike jumped on those two clauses like starving hyenas.
By 1976, three years after Roe, the Hyde Amendment outlawed any federal coverage of abortion; women on Medicaid and every other federally funded health insurance were banned from using that insurance to obtain an abortion. States went further, coming up with creative restrictions to discourage or outright prevent women from getting abortions. In 1983, the Supreme Court heard Akron v. Akron Center for Reproductive Health (otherwise known as Akron v. Akron — why, Ohio? why?) and struck down provisions of Ohio law restricting access, including a 24-hour waiting period and a requirement that doctors tell women that a fetus is a human life from the moment of conception.
But apparently the decision saying, that has nothing to do with women’s health or any other legitimate interest wasn’t enough; less than ten years later Planned Parenthood of Southeastern Pennsylvania v. Casey brought similar laws back to our highest court. The waiting period restriction was back before the Court, with the added fun of a husband notification clause. And the Court abandoned the strict scrutiny that had decided Akron and upheld nearly every aspect of the Pennsylvania law. In its place, we got the “undue burden” standard, giving states a free pass to restrict abortion as long as it didn’t pose an undue burden on a woman seeking abortion.
The Casey decision saved Roe, but the cost was high. The devil’s in the details, or, in the case of the undue burden clause, the lack thereof. Women who’d fought tooth and nail for access to safe and legal abortion watched the guarantee of Roe crumbling before their eyes as states passed ever-bolder restrictions on access. Waiting periods, parental consent, “informed consent” and state-mandated counseling, 20-week bans and other cutoffs popped up all over the country. The anti-choice movement managed to rename dilation and extraction (D&X) as “partial birth abortion” and next thing you know, we’ve got a federal ban.
And then there are the direct attacks on providers that became so prevalent we had to name them: TRAP laws, or Targeted Regulation of Abortion Providers. Laws that demand abortion providers be outfitted as ambulatory surgical centers – regulating hallway width and the number of bathrooms and janitorial closets. Laws that require hospital admitting privileges for providers, privileges that are almost impossible to obtain because of insurance reasons. All this, done in the name of “women’s health.” Women’s health, somehow threatened by one of the safest medical procedures – safer than getting your wisdom teeth out.
In 2013, the Texas state government passed two TRAP provisions collectively known as HB2. The new requirements – that clinics meet ambulatory surgical standards and providers have admitting privileges at a local hospital – had forced more than half of the abortion clinics in Texas to close their doors. The remaining clinics were overwhelmed with patients, and the number of desperate women attempting at-home abortions skyrocketed. And it wasn’t just Texas: the same laws – almost word-for-word identical – were popping up everywhere; we saw the ambulatory surgical regulations version here in Minnesota. It began to look like the end of Roe.
When the case went to the Supreme Court as Whole Woman’s Health v. Hellerstedt, I was both terrified and ecstatic. Here it was, our chance to take back all the ground we’d lost – but only if at least one Supreme Court justice changed tracks completely on the issue of abortion. I was convinced we were looking at a 5-4 decision that would crush Roe for good. Even when Justice Scalia died, I didn’t dare to hope; after all, a 4-4 decision would still mean that the lower court ruling would stand, and even more clinics would close.
But wonder of wonders and miracle of miracles, Justice Kennedy finally decided that women are people after all, and we got a 5-3 decision in our favor. The Court declared HB2 unconstitutional; the burden, undue. And Justice Ginsburg used language open enough that I begin to hope again.
“So long as this Court adheres to Roe v. Wade…and Planned Parenthood of Southeastern Pa. v. Casey,” she writes, “Targeted Regulation of Abortion Providers laws like H. B. 2…cannot survive judicial inspection” [emphasis mine].
The Court broadened the narrow victory scraped by Casey, calling into question the lawfulness and constitutionality of the hundreds of restrictions. These are not the only undue burdens, Ginsburg seems to say, and I’m coming for the rest of them, too.
This week, NARAL Pro-Choice Minnesota will celebrate our fiftieth anniversary, and I’ve been looking into our history. A letter from the president of the organization, dated January 25, 1973, starts with the joyful declaration, we won! I look at that, and I think of the woman at Pride, running her hand over buttons. I think of the women I’ve talked to while canvassing, those with pre-Roe abortion stories and those who marched with women’s lib groups. I think of Sarah Weddington, who argued Roe v. Wade and won. I think of Kathryn Kolbert, who argued Planned Parenthood v. Casey and saved Roe for another generation. I think of Ruth Bader Ginsburg, whose concurrence in Whole Woman’s Health v. Hellerstedt both preserved Roe and expanded Casey.
And that, I think, is what I want to take with me. Not frustration and despair that abortion access is still a battle, but instead the spirit and determination of the women who have been fighting this battle for generations. So, to every woman who’s come before me: Yes, we’re still saying the same things. It is still my body, my choice. And we’re going to keep on saying that until we’re heard.
If you are interested in attending NARAL Pro-Choice Minnesota’s 50th Anniversary Celebration, tickets can be purchased here: https://act1.myngp.com/Forms/1592303943252180992