Preparing for a Post-Roe America

Laura Barcella | Longreads | February 2019 | 13 minutes (3,517 words)

The 46th anniversary of Roe v. Wade just occurred on January 22 — but the days of relatively uncomplicated American abortion access are, most likely, numbered. In fact, author Robin Marty believes it’s not a matter of if Roe will be overturned, it’s a matter of when.

For more than ten years, the Minneapolis-based freelance reporter and author of the new book Handbook for a Post-Roe America has been diligently chronicling the twists and turns of both the pro-choice and anti-abortion movements. Ever since Supreme Court Justice Anthony Kennedy announced his resignation, Marty — like many other pro-choice Americans — has been waiting for the proverbial pro-life shoe to drop. Losing Kennedy, the swing voter on a number of major abortion rulings, and gaining Brett Kavanaugh — a long-time pro-life ally — seems to all but ensure the end of Roe, as well as the downfall of abortion being considered a constitutional right.

Indeed, several weeks after Marty and I spoke in late January, Kavanaugh voted with a minority of Justices to overturn recent Court precedent in favor of a law that sought to impose a new form of undue burden on abortion-seekers in Louisiana. The Cut called Kavanaugh’s dissenting opinion something verging on gaslighting. In it, he postulates that perhaps the undue burden — abortion providers being required to gain admitting privileges at local hospitals — could simply be met, when of course providers have already been trying to gain admitting privileges for years. The Court ultimately blocked the implementation of the law, but only because the conservative Chief Justice, John Roberts, voted with the liberals. The margin of safety has grown vanishingly thin.

Let’s consider what that means. If Roe were overturned, it wouldn’t necessarily make it impossible for a pregnant person to obtain an abortion, but it would potentially make an already challenging process even more daunting. As it stands, obtaining an abortion is already far from affordable or convenient for many women, even in blue states with a plethora of clinics. Despite Roe’s current status, and despite the fact that statistically, most Americans believe in a woman’s right to choose, abortion care is still often portrayed as a privilege instead of a right — or as a miserable “worst-case” scenario rather than a straightforward medical procedure.

Marty’s new book (available now from Seven Stories Press) lays out various scenarios for exactly what a Roe-less future might look like. More importantly, it explains exactly how we should prepare for this reality. As Marty writes in Handbook, “While Roe and the cases that preceded it made birth control and abortion legal, they did nothing to curtail the coercive power our government wields over the bodies of those who can give birth.”

For the liberal naysayers who can’t fathom America sinking quite so far into Handmaid-land, Marty reminds readers that not only have anti-choice laws and restrictions been ramping up in recent years, but the pro-life contingent has been emboldened under Trump’s presidency in frightening new ways. In the following interview, Marty further explains the possible dangers of what lies ahead, and how we can start protecting ourselves now.

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Can you tell me a little bit about how the book came about? It traces back to a Twitter thread, is that right?

Right. Anthony Kennedy announced that he would be retiring. As soon as that happened, my first thought was, ‘Okay, this is basically the end of Roe.’ And even if this isn’t exactly the end of Roe, it’s enough of a push and enough of a change that all the people who had been quiet before and hadn’t seen this as a real threat, finally understand that it’s a turning point.

Part of the reason I started the Twitter thread was because the first two things that I saw people saying as soon as Kennedy announced his retirement were, A) ‘I’m going to donate to Planned Parenthood,’ and B) ‘I’m going to stockpile emergency contraception.’ And my first thought was okay, donating to Planned Parenthood is always good, but there are so many clinics in states that only have one clinic that are not run by Planned Parenthood, and that doesn’t help them. And getting emergency contraception for yourself is always good, but the idea of stockpiling can be done in such a way that it actually harms access.

I talked to a number of people who are very high in the pro-life movement. Many of them assured me that Kavanaugh will be the vote, and that Roe will be overturned as soon as they can get a case up there.

My thought was ‘Here are all these things that you can do that would be better actions than what people are describing.’ And so it turned into…a 30-tweet thread of [suggestions for] places you can donate to and actions you can take instead; groups that you should be working with on the ground.

As I was doing this, I was getting a lot of really good responses. One of them was from … a woman book agent, who said, ‘I think there’s actually a book there; can you write a proposal and I will see what I can do?’

Within about a month, I had a book deal with the understanding that I had to write a book in three months, because they wanted it out before the anniversary of Roe.

I was going to ask you about the timeline because I knew it must have been tight. Was that stressful?

Yeah, it was definitely a challenge. Especially because it was summer, so I had children at home. My first book, Crow After Roe, was sort of … I accepted a proposal with my co-author and we didn’t really expect the first publisher that we sent it to, to say ‘Yeah, let’s do this.’ But they did, and then they said, ‘We’re going to move a book aside so we can run this right away. Can you have it done for us in three months?’

There seems to be something about three months! It’s always three months for me.

But I wrote this book in about eight weeks.

That sounds stressful.

I would like to say I wrote a lot, but most of what I did [for the handbook] was compiling all of the different information that was already out there. And I did that for two reasons — one was so that it was in one accessible place so it’s easy to get to, and the other … was because people don’t always know where to look for this information. We’ve already seen with the Trump administration how information disappears. Health and Human Services re-wrote some of their rules, they disappeared trans language from a lot of things. Nothing on the internet is completely safe, [whether] because of censorship or anti-abortion activists who decide that they want to do some attacks online to try and bring down websites; there’s always the [chance] that you might not be able to get to information when you need it.

How did you get involved in covering abortion care and abortion access as one of your primary beats?

That evolved out of being a progressive blogger. I started anonymously blogging in 2004 while I was working for an investment banking firm. I ended up working for a progressive news site that was setting up state-based news sites. I got more aware of the abortion issue, especially what was going on in [various] states.

In 2009, I ended up writing specifically for a reproductive health website. They picked me up after I was laid off, right after the Affordable Care Act debate and … trying to get all abortion coverage removed from the insurance plans. I had just had a miscarriage, and I had to go into a hospital for a DNC in order to have everything removed. I had this very in-your-face ‘what if’ moment of [wondering], ‘Would that be something my insurance will cover under the new plan?’ Because it was coded in the hospital bills as abortion.

After that I was working for RH Reality Check, as it was called back then (now it’s Rewire News), and I spent a few years tracking all of these bills as they were popping up through the states, and it grew from there.

Can you walk me through the scenarios that you see as the most likely and least likely when it comes to legal abortion access?

If you had asked me a week ago [we had this conversation in late January -LB], I would have said the most likely thing that was going to happen would be that the Supreme Court would keep Roe intact; that it would not overturn the verdict. The court would allow states to pass whatever bills they wanted to pass, as long as they did not explicitly completely ban the procedure.

Can you explain that a bit more?

What I [believed would] happen was that you would have a state like Mississippi, which only has one abortion clinic, and it would finally be allowed to enact rules that would close that one clinic. But because it didn’t actually ban abortion outright in the state, and the state would still [technically] allow abortion, that it would still be considered constitutional.

But now I actually believe that Roe will be overturned completely — and that states will be allowed to make it completely illegal.

Why do you believe that now?

I was at the March for Life [recently], and I talked to a number of people who are very high in the pro-life movement. Many of them assured me that Kavanaugh will be the vote, and that Roe will be overturned as soon as they can get a case up there.

I believe that Roe will be overturned, that we’ll have at least 10 to 15 states that will not have any abortion [access] at all. There will be a number of states that might go completely without abortion or otherwise will pass laws that will make it extraordinarily difficult to get an abortion at all, and then there will be about 10 to 15 states that will have abortion access and will probably expand it.

The problem with this scenario is that all the states that are going to either ban, or are going to make abortion nearly impossible to get, are all in the same place. They’re in the Midwest, and the entirety of the Southeast, except for maybe Florida, will be without any sort of legal abortion. That’s scary and alarming, and something that we have to plan for.

It sounds horrible to say ‘Plan for an abortion now,’ but the reality is, if you are capable of getting pregnant, [planning] is something that you should do.

How do we plan for that? What do you suggest people start doing now?

The first thing that I tell everybody is that the best thing to do is plan for what will happen if Roe is overturned and abortion is illegal. What a person can do is figure out what is going on in their state first — will their state be one that will make abortion illegal or will they have some sort of access? Which is going to be the closest state to you that will have abortion access?

It sounds horrible to say ‘Plan for an abortion now,’ but the reality is, if you are capable of getting pregnant, [planning] is something that you should do. We’re looking at huge travel that will have to happen, and trying to get through waiting periods in some of the states that remain. The clinics that are going to be left are going to be overbooked, and abortion is not going to be covered by insurance. It will be extremely expensive, so if you plan for that and don’t need it, that’s fantastic. But if you suddenly find yourself with an unexpected pregnancy that you don’t want to carry to term, trying to figure all of that out at the last minute is going to be extraordinarily daunting.

People plan for retirement; people plan for all sorts of things in their life. You should also plan for an abortion.

I know there’s no way to explicitly predict this, but what sort of timeline do you think this might happen in?

I would say that Roe will probably be overturned … after the 2020 election. It would be that soon. We have a number of cases already in the federal court system that have circuit splits [in which two federal courts don’t agree about whether similar laws are constitutional]. Any one of those can be taken up to the Supreme Court for them to make a final ruling, and through that can overturn Roe.

Also, something that people don’t understand is that the courts can technically take any case that’s about abortion and use that to overturn Roe. So for instance, the Indiana Down Syndrome ban. Basically every time the court meets again to see if they’re going to take up a case, it could be the one that would overturn Roe, if they chose to use it that way.

But … I don’t see the courts doing it before 2020 just because of election impact. I hate to say it, but our Supreme Court has become so partisan at this point that I see them taking that as a consideration.

Which state restrictions are you monitoring the most closely right now?

Depending on scenario, heartbeat bans are really alarming because they make it almost impossible to get an abortion before it’s too late to get an abortion. But for the most part, courts have been saying that [those are] unconstitutional.

One of the [other] things really alarming me right now is the idea of abortion restrictions on top of abortion restrictions, especially when it comes to states that are expanding their waiting periods. There’s two different ways that waiting periods work. In some states, waiting periods start from the point at which you call a clinic, and so they’ll give you information on the phone and you don’t have to make two trips into the clinic. But a lot of states are now having them in a way that you have to come in to the clinic, get the information, then walk away, come back and have your next appointment anywhere from 24 to 72 hours afterwards.

When you take a state that has a waiting period of 72 hours or more, has only one clinic, and then the clinic only performs [abortions] up to 12 weeks, then you have basically [created] a situation where a person is going to spend at least a week just going back and forth, trying to get an abortion knowing that there’s a cutoff, plus knowing that there’s an immense wait to get into that clinic to start with.

[This is how] they’re really strangling the system altogether. None of these things on their own necessarily look unreasonable, but stacked on top of each other, they’ve made abortion almost impossible to get.

You recently attended the March for Life. Did you notice a bigger turnout, or more fervency among the pro-life faction there?

Yes, yes, yes. I’ve been to the March for Life four times now. At the march I went to before the 2016 election, abortion opponents thought they had lost. They believed that Hillary Clinton was going to be elected. They believed they were losing the entirety of the Supreme Court, so it was a very dejected feeling there, but [there was] also a sense of ‘what can we do in order to make tiny gains around the edges?’

Being at the march over the last two years, it has changed so dramatically. Their people are in the administration, they’re in the HHS, their elected leaders are everywhere. They have so much right now, and they know that. They feel that Roe is on the rocks, that they are about to have that win.

Also, the March for Life has become increasingly political ever since President Trump was elected. There’s signs saying “Make Babies Great Again” and, like the Covington students, everyone’s wearing MAGA hats. It’s become so intertwined with politics, and especially with the Republican party, that it has in many ways turned into a rally for social conservatives and for the religious right.

If abortion is made illegal again … people are, frankly, unlikely to die  … Our problem now is that abortion … done outside the legal system is going to get you thrown in jail.

You touched on third-trimester abortion a little bit in the book, which is already not readily accessible throughout the country. What will happen to that if Roe is overturned?

We just had New York pass the Reproductive Health Act, which basically removed all abortion from the criminal code, which means that New York providers can now offer third-trimester abortions in cases where there is a significant medical need for it. So if a person is having mental health issues, if a person has a fetus with an anomaly that they can’t or don’t want to carry to term, third-trimester abortion has been opened up as long as there is a valid medical reason for it. And that’s not something that was happening in New York before. Before, we had a clinic in Colorado that would do it, and a clinic in Maryland, and a clinic in New Mexico.

There’s a section of your handbook about privacy concerns. Why was that important for you to include?

One of the things that we’re already seeing when people induce their own abortions or have bad pregnancy outcomes that make the hospitals or the authorities suspect that they induced their own abortions, is that when they’re investigated their computers get seized. Their phones get looked at. One of the things that happened to Purvi Patel, who was arrested for feticide and homicide in Indiana, was that they looked at her text messages and saw that she said she had taken something. That was what they used to prosecute her.

If a person’s going to work outside of the legal clinic system in order to end a pregnancy…we just have to be aware of what sort of information could get out there, especially when a person might be going outside of the legal clinic system, and anybody else who has talked to them could be seen as an accessory in either having helped them obtain medication or [other] ways.

Can you talk a little bit more about self-managed abortion? Were there legal challenges to publishing that particular chapter of your book?

Not specifically, although I did have it vetted by a lawyer. One of the things that’s very interesting about the publisher that I ended up with, and probably one of the reasons that the book exists at all, is that Seven Stories Press actually published a book called A Woman’s Book of Choices by Carol Downer. One of the things she did was explain how to do menstrual extraction. That was considered mind-blowing at the time, that there was a publisher that would actually give instructions on how to make this and do this.

So the publisher was really good about wanting to include all of this information, that this is information that needs to be public. And honestly, all of this information is online; it’s available everywhere, it’s just not compiled in one space. I’m not encouraging anybody to do this, and I think that the best way is always going to be going through the legal system. It’s just, if people are going to do it, they need to have information on how to do it safely.

Do you think we’ll see an uptick in DIY abortions? Is there already an uptick?

My understanding is that there probably is. The fact that we can’t verify that or actually prove that in any way, shape, or form is good because that means that people are doing it the right way, protecting their privacy and making sure that their caches are not being found. When they do speak to people at hospitals, making sure that it’s understood that this is a miscarriage and that’s all the information that a person needs to give.

What are some of the biggest misconceptions that you keep hearing or seeing regarding abortion access lately?

I see a lot of people saying that they still don’t believe that Roe is going to be overturned. I also see people — on our side as well — [repeat] the idea that people [will die] if abortion is made illegal again.

When we go into a post-Roe landscape, people are, frankly, unlikely to die if they get illegal abortions. Because we can get medications online, and these medications have been proven to be very safe. If there is a rare complication, it can be taken care of at a hospital, if necessary.

Our problem now is that abortion … done outside the legal system is going to get you thrown in jail.

We need to, as a movement, make sure that people understand that doing your own self-induced abortion is not medically any more dangerous than a [medically supervised] abortion would be. The only difference is that because this is not legal, people are afraid to report when something goes wrong. And in some cases it’s not even anything going wrong, it’s just too many people don’t know exactly what the process is like, so they think something is going wrong.

We have to make sure that everybody understands what a self-managed abortion looks like; what’s normal, what’s not normal, what will get them in trouble, what will not get them in trouble, what to say to a hospital, what not to say to a hospital.

People need to be aware of all of that because when we go into a post-Roe future … we aren’t generally going to see [people] bleeding out and dying in their homes, but we could see [people] going in for help because they think something’s wrong, and ending up in jail instead.

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Laura Barcella is an NYC-based journalist and author.

Editor: Dana Snitzky