by Dr. Morgan Healey

This is the third in the blog series by Morgan Healey, immediate past President of ALRANZ, who has recently returned to the US. It aims to bring to life the uniquely absurd state of reproductive rights and justice in the US.

Morgan-with-pounamu-pendant_WebOne of President Obama’s first acts as President this year was to veto a bill that would have defunded Planned Parenthood and repealed part of the Affordable Care Act. This is the world people in the US inhabit: a world where Republicans have nothing else to do but deny those most in need of access to affordable and preventative medical care. Increasing inequalities and injustices seem to be the plat du jour in the US at the moment, making the gap between rich and poor, have and have-nots even greater. Nowhere does this become more apparent than the fight for reproductive justice: a framework that I believe is imperative for discussing not just access to abortion, but the fundamental racial, gender and economic justice required to enable people to make reproductive decisions free from stigma, shame, violence, and intolerance. (For more on just how ‘shocking’ some of these inequalities are see the UN expert report on discrimination against women in the US.)

So when I look forward to 2016, the prospective political and judicial landscape seems pretty terrifying. Given what we saw in 2015 in terms of anti-choice legislation sweeping the country, it seems highly probable that this trend will continue in 2016. According to the Center for Reproductive Rights, in 2015 over 400 bills were introduced and 47 laws enacted that restricted abortion. The majority of the laws enacted were TRAP laws (targeted regulations of abortion providers), which the Center points out are “politically motivated restrictions that do not apply to any other similar health care, interfere with patient’s personal decision-making, and ultimately block access to abortion care” (See its 2015 State of the States: Fighting Back By Pushing Forward report).

Unlike 2015, however, 2016 could be a seminal year for another reason. The success of anti-choice legislation for years to come (and for that matter, the US Presidential election – see Amanda Marcotte’s recent piece here on how the case could influence the election) will pivot on the outcome of the US Supreme Court (SCOTUS) case of Whole Women’s Health v. Cole, which will be heard before the Court on the 2nd of March. As many commentators have discussed, this case has the potential to substantively roll back Roe, making abortion rights and access a thing of the past in the US.

Self-Abortion on the Rise

What we have seen to date does not provide much hope for the future without Roe to act as a stopgap against more heinous attacks (even with Roe, the antis have stretched the meaning of ‘undue burden’ set out in Casey v. Planned Parenthood, 1992). Research in 2015 by the Texas Policy Evaluation Project highlighted the impact of HR2 on abortion access (the Texas bill that will be debated by SCOTUS in March), with an estimated 100,000 to 240,000 women turning to self-abortions, often using misoprostol purchased across the border in Mexico (note: with a Republican President, we could see increased patrolling and cracking down on people’s movements between the two countries, severely erode this option and force women to more desperate measures).

For those who cannot access abortion, even early medication abortion drugs purchased illegally, their options are bleak – carry an unwanted pregnancy to term (with the financial and emotional implications that go with that) or return to an increased use of dangerous and desperate acts not seen since the 1970s. For example, the sad case of Anna Yocca from Tennessee, who used a coat hanger to self-induce an abortion and had to be rushed to the hospital because of profuse bleeding. She is currently being held on a murder charge.

Criminalizing Pregnancy

Criminal prosecution of pregnant people is not new. Several states criminalize certain behaviors during pregnancy. However, this came to a head in 2015, with Purvi Patel being convicted of feticide and felony neglect of an independent in Indiana, after she sought hospital treatment following a miscarriage. She is appealing the ruling, but could face up to 20 years in prison. This sets an important and dangerous precedent for pregnant people who could face criminal charges in a situation where desperation leads to using non-legal means to abort and where a ‘natural’ miscarriage becomes suspect. Presumably, more of this would be on the cards should Roe be rolled back, and TRAP-type laws become a judicially condoned means to erode already fragile reproductive rights.

Links to Racial and Class Justice

You would probably think that litany is enough doom and gloom for one day. Unfortunately, returning to the reproductive justice frame, we cannot view attacks on sexual and reproductive rights in a vacuum. Instead, the implications of judicial rulings and restrictive laws on reproductive rights must be understood within the wider context of court cases relating to racial and class justice. Jessica Mason Peiklo and Imani Grady have provided an excellent run down of pending and future cases here. This list is an important one because even those cases outside the explicit purview of reproductive rights could influence not only the people elected to decide on future laws, but also circumscribe the ability of large populations of people living in America to exercise important civil, political, social and economic rights.

For example, Evenwel v. Abbott, which challenges the ‘one person, one vote’ principle could drastically increase the success of white, cisgender men, Republican candidates to the US House of Representatives (I know, you didn’t think we could have more than we currently do). The 14th Amendment states that the number of seats allocated per state to the House should be based on the population size of that state. Currently, this includes counting those who are not legally allowed to vote, including children, legal and illegal immigrants, many prisoners and other non-voters. However, the key to this argument and future impact is this statement from Pieklo and Grady, “States follow this process when determining their own statewide districts, carving up districts based on U.S. Census Bureau population data and irrespective of the total number of registered voters in each”. If the plaintiffs win and it becomes ‘one registered voter, one vote’, “the gains made by the civil rights era in diversifying our elected bodies would be rolled back, the same way Shelby County v. Holder rolled back the voting participation gains made by the Voting Rights Act”.

Reading this case in connection with Citizens United, which allowed corporations to be treated as people for the purposes of political donations, Shelby County v. Holder, and the potential outcome in Fisher v University of Texas, a case questioning affirmative action policies, the US could be left with a legislature that is even whiter, more male, more conservative and less representative of the population than any we have seen since Reconstruction. With fewer people of colour being protected by affirmative action and able to access higher education, in tangent with disenfranchisement at the polls and the division of voting districts that are older, whiter and more rural than the actual population, cycles of deep poverty and social injustice could be exacerbated, and access to affordable health care, like that offered by Planned Parenthood would become a thing of the past. A very bleak outlook indeed.

Some Actual Victories

So while the outcomes of the judicial cases highlighted above are beyond the control of all but the nine judges that preside over the court (and the next President – read Hillary Clinton’s op-ed on the importance of judicial nominations in the next election), activists do have wins from 2015 to build on: California and Oregon making oral contraception available over the counter; California regulating crisis pregnancy centres. But for me the greatest hope lies in the social justice movements that have been calling out for change. In particular the Black Lives Matter movement provides an important moment for those in the US to challenge the perpetuation of systems of racism (structural and political), and for white people to acknowledge and work against our hegemonic racial privilege. In this movement, along with others like Fight for $15, and organisations like, SisterSong, Planned Parenthood, and Sea Change, calls for racial, economic and sexual and reproductive rights are being heard across the country. It is a fight that requires multiple fronts and myriad strategies. Or as Bernie Sanders keeps saying, what the US really needs is a (progressive, social justice) revolution. I say bring it on!