Majority-Conservative SCOTUS | Post-Roe Ohio is Dismal but DoableSeptember 25, 2018 4:00 pm Lauren Sega
**Editor’s note: This is the second article in a three-part series analyzing the consequences of a Roe v Wade overturn.The first piece looks at current and future threats to the right to privacy and autonomy. The third addresses the potential criminalization of miscarriage.**
Pro-choice activists are in a state of triage. Since their major offensive move in 1973 — when the U.S. Supreme Court’s decision in Roe v Wade granted women the privacy to manage their fertility with the counsel of their physician — they’ve been baling water and plugging wounds as conservative lawmakers toy with how far the idea of “undue burden” can go.
“We have had undue burden, and people are going through undue burden so much right now. That’s exactly why we exist,” says Stephanie Craddock Sherwood, Executive Director of Women Have Options Ohio (WHO/O).
WHO/O is a non-profit organization that helps people obtain abortions. This could mean covering the cost of the procedure, which increases as the pregnancy gets further along and isn’t always covered by insurance. Or, it could mean providing transportation for those coming in from rural areas that don’t have clinics, and housing them to accommodate the state’s mandatory 24-hour waiting period.
Since Ohio passed its 20-week ban on abortions, Women Have Options have also helped one client, who was facing personal and fetal health complications, obtain a late-term abortion by flying her out of state. They covered her room and board as well, and put up the last $6,000 for the cost of the procedure.
The Supreme Court currently awaits a replacement for the resigned Justice Anthony Kennedy, and President Donald Trump’s nominee Brett Kavanaugh, although facing accusations of attempted rape from a former high school classmate, seems the likeliest candidate. While experts have said a total Roe v Wade overturn is improbable, many predict the newly majority-conservative court to permit more obstruction to abortion access.
While bleak, many pro-choice activists say a post-Roe country isn’t quite as dismal as a pre-Roe one. For starters, pro-choicers have had more than 40 years to establish a network of providers and advocates. If in some states abortion is outlawed or even criminalized, there is a contingency plan.
Already, there are communities facilitating at-home abortions in states with overly restrictive laws. For up to 10 weeks, people can opt for the abortion pill, which actually comes in two capsules: mifepristone, a progesterone-blocker that detaches the embryo; and misoprostol, which expels the contents of the uterus. Although the FDA requires supervision over what is termed a “medical abortion,” many purchase the pills online. Referring to resources like Women Help Women, they’re then coached through the procedure.
As convenient and relatively inexpensive as a medical abortion can be, it’s also less effective and can require up to 24 hours to work. The sooner the pills are taken, the better; for those who are eight to nine weeks pregnant, it works 96 percent of the time; and for those who are nine or 10 weeks along, it’s up to 93 percent effective. But while it usually works, some may need to follow up in-clinic to complete the procedure.
“The need for surgical abortions cannot be replaced by any form of medical abortion,” Colorado abortion provider Warren Hern told Bloomberg in July. “Medical abortion may be effective for women in most instances in very early pregnancy, but this always needs to have a surgical backup in case the medical abortion fails or is complicated (this happens a lot).”
In Ohio’s case, this surgical backup would not exist. And those going through with a medical abortion would be doing so outside of the law. While not a “trigger state” — meaning there’s no law to ban abortion that is contingent on the overturn of Roe v Wade — Ohio is poised to criminalize providers and seekers of the procedure.
House Bill 565 would outlaw medical and surgical abortions. Classifying an “unborn human” as a person under Ohio’s criminal code, the bill would enable those who provide or undergo abortion to be charged with murder, an offense punishable by life imprisonment and the death penalty.
This could complicate matters for those who miscarry, as doctors cannot presently discern between a spontaneous miscarriage and an induced abortion, “unless they find physical traces of the pills.” Those already distrusted and marginalized by the medical community, including low-income people and people of color, are expected to face further discrimination in these precarious circumstances.
“History has taught us and shown us — and it’s not historical context from 20 or 30 years ago, this is literally over the last couple of years — we see women that have potentially either induced or had a spontaneous miscarriage being criminalized, and they are disproportionately black and brown women,” says Jessica Roach, Executive Director of local reproductive justice organization Restoring Our Own Through Transformation (ROOTT).
“So, the reality is that we could potentially have a body of laws that are saying that [law enforcement] gets to decide whether or not we’re telling the truth,” Roach continues. “I could literally go to jail for having a spontaneous miscarriage. I could be in the middle of a grieving process and be thrown into jail because they’re accusing me of manslaughter.”
Should Roe be overturned or gutted, groups like WHO/O will face an influx of clients requiring out-of-state travel funds. While there are a number of trigger states (and others have introduced abortion bans), there are 15 that will probably remain pro-choice, the nearest being New York and the District of Columbia.
To keep abortion accessible, more groups like WHO/O will need to proliferate throughout the country, replicating a tactic from the pre-Roe era. New York became a destination for women all over the country when it legalized abortion in 1970. The state opened a number of non-hospital abortion clinics to accommodate the demand, many of which closed after 1973.
“We’re kind of uniquely poised in this situation,” Sherwood says. “Women Have Options has continued. We have been making sure people, despite the laws, still have access to abortion.
Half the clinics have closed, and we’ve been putting people on buses, driving folks to clinics to make sure they can still access abortion,” she continues. “The 20-week ban was enacted, and Ohioans are still getting abortions past 20 weeks when they need it.
We make sure they still have it, that they can still access the abortion they need, despite what the lawmakers in Ohio have said.”