[ 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. Policies
that claim to keep the government out of abortion are being written to
criminalize abortion later in pregnancy.]
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THE DANGER OF ABORTION ‘COMPROMISE’  
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Erika Christensen
December 26, 2023
Abortion, Every Day
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_ 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. Policies
that claim to keep the government out of abortion are being written to
criminalize abortion later in pregnancy. _

Image credit: Abortion, Every Day,

 

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
[[link removed]] 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
[[link removed]], 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
[[link removed]],
“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
[[link removed]] 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
[[link removed]],
has included allowing gestational limits or viability lines that
essentially permit the government to police pregnant people based on
arbitrary timelines. 

[[link removed]]

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 [[link removed]],
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
[[link removed]] 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 [[link removed]]. 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
[[link removed]] 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
[[link removed]].
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
[[link removed]].
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
[[link removed]],
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
[[link removed]] 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
[[link removed]] 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
[[link removed]]:

“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
[[link removed]] already.
(Attorney General Ashley Moody is petitioning the state Supreme Court
[[link removed]] 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
[[link removed]] 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
[[link removed]] by
Gallup and Marist show similar trends. At the very least, it means we
can’t blame our policy compromises solely on the public.

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 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
[[link removed]] 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 [[link removed]]. She
tweets @RHAvote [[link removed]].]_

_To read more columns like this one, subscribe to Abortion, Every Day
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* abortion
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* abortion rights
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* Women
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* war on women
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* Dobbs v. Jackson
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* Kate Cox
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* texas
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* post-Roe reality
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* abortion bans
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* 20 WEEK ABORTION BANS
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* Reproductive Justice
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* Reproductive rights
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