Within hours of the news breaking on Friday that Supreme Court Justice Ruth Bader Ginsburg had died, Twitter filled up—as it has before, after the 2016 election and then again in 2018 when Brett Kavanaugh was nominated to the Court—with urgings to go get an IUD.
In a widely shared gut response, shock and grief quickly gave way to panic over a future with another Trump-appointed Justice on the bench, and the possibility of losing Roe v. Wade and the Affordable Care Act. People moved swiftly into practicality: What can we do now to protect ourselves, should two vital pieces of reproductive health infrastructure disintegrate in the next year? Articles in the Lily and Refinery 29 speculated on a potential surge in IUD insertions, just like the one recorded in the 30 days after Trump was elected.
It’s possible that doctor appointments to get IUDs will spike. As sources told both the Lily and Refinery 29, and as people say online, appointments are already being made, even though the Supreme Court term doesn’t begin until October and the Court is unlikely to make any decisions until next summer.
That it’s become rote for certain political events (or even deaths) to prompt personal health decisions is disturbing. But calling for everyone to get an IUD and protect themselves now, before federal-level abortion protections go away, misunderstands the current reality for handfuls of states, and doesn’t do anything to help those who are most vulnerable under a new Supreme Court.
It’s true that entire swaths of the country stand to lose access to legal abortion in the next year, if another conservative justice is appointed. But entire swaths of the country already live under restrictions that feel unimaginable. Those with the resources and ability to do so can, sure, take care of themselves first and get an IUD. But then there are plenty of grossly underserved states that could benefit from sustained galvanization around abortion access.
States in the South already have severely limited abortion access, even with Roe in place
As people living in states with restrictive abortion laws already know, some state lawmakers have been chipping away at access to abortion, and at the rights—reproductive health-wise and otherwise—conferred by the ACA. People in those states theoretically needed IUDs long ago.
States along the Gulf Coast and throughout the South and Midwest already have restrictions that make abortion nearly impossible to access, particularly for people of color and the economically disenfranchised. A 2019 analysis by the Washington Post found that people living below the federal poverty level are more likely to have to drive over an hour for abortion care, due to the widespread closure of abortion clinics in rural counties. A majority also live in states (like Texas) with waiting periods that require overnight stays in cities with clinics, and more time off work.
In Ohio, through a series of requirements that limit the ability to receive abortions, like mandatory counseling and a 24-hour waiting period, the number of clinics in the state has dropped from 55 in 1982 to just nine in 2020.
If and when the Supreme Court rules on a number of cases, Roe included, abortion access will get even more limited
We may still have the protections of Roe v. Wade, but look at Mississippi and West Virginia: Both states passed bans on dilation and evacuation abortion, or D&E, months ahead of the 2016 election. Five other states tried to do the same, and are waiting on pending court cases to enact their own bans. Even if Roe remains intact, a Supreme Court without Ginsburg could rule D&E bans as constitutional, which would immediately make the procedure, which accounts for a vast majority of all second-trimester abortions, illegal in about 11 states (all in the South and Midwest).
While Roe v. Wade prohibits states from making abortion literally illegal, other landmark cases that could be revisted under a new Supreme Court would give states nearly unlimited freedom to chip away at access in other ways. A case out of Louisiana could revise the decision the Court made in Whole Woman’s Health v. Hellerstedt, the 2018 case that found H.B. 2, a Texas law that targeted restrictions at abortion providers (or TRAP law), to be unconstitutional. Ginsburg wrote the concurring opinion for the case, establishing that any law that seeks to protect women’s health by placing undue burden on abortion providers is not legal. “Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory surgical-center or hospital admitting-privileges requirements,” she wrote. “Given those realities, it is beyond rational belief that H.B. 2 could genuinely protect the health of women.”
Even though the case is only two years old, as Robin Marty, author of The End of Roe v. Wade and A Handbook for a Post-Roe America, said on the Majority Report last year, the Fifth Circuit Court in Louisiana has already said the ruling should be revisited. Doing so could enable states to enact any number of arbitrary restrictions on abortion procedures, which proved a highly effective strategy in Texas: Under H.B. 2, the number of abortion clinics shrank to single digits.
Many abortion policy experts believe that going after access incrementally—by putting more and more power into the states—is how the Court will ultimately go about dismantling access across the country. Or in other words, it won’t happen by simply overturning Roe. Even if that were to happen, the states most at risk of losing the right to abortion are still those in the South and Midwest that have trigger laws that make abortion illegal in the event Roe is overturned. Just as many states have laws that preserve access to abortion on the state level in a Roe-less America. States with such protections sit almost exclusively in the West and Northeast.
“We’re getting to a point where we are literally talking about a region in which every person who needs an abortion will have to fly somewhere,” Marty said in a recent interview with the Cut. “I think it’s fair to say we’re going to see abortion is completely illegal except for the West Coast, which is on fire, the Northeast, and then basically Colorado, Minnesota, Illinois, and New Mexico.”
It’s a terrifying possibility, one that feels closer than ever before, due to Ginsburg’s death.
So what is anyone supposed to do?
Marty urges using this moment of loss to organize around those who are most at risk of losing their access to abortion. That can be done by:
1) Voting. Senator Mitch McConnell remains intent on appointing a Trump nominee to fill Ginsburg’s open seat on the bench, despite there being less than two months until the election. The Senate has already confirmed that they’ll appoint a Trump nominee, but if that doesn’t happen, the upcoming Senate election could greatly affect who fills Ginsburg’s seat.
Republican-held Senate seats in Arizona, Maine, Colorado, and North Carolina have the potential to flip to Democrat candidates, reversing the Republican majority and making Senator Chuck Schumer the likely Majority Leader. Even if Trump maintains the White House, a Democrat-held Senate is unlikely to confirm a conservative, blatantly anti-abortion Supreme Court nominee. Right now, Trump’s nominee is predicted to be Amy Coney Barrett, a Catholic conservative who believes in “life from conception” and is beloved by anti-abortion groups.
2) Pumping money into mutual aid and abortion funds in states with trigger laws, states with pending D&E bans, and states throughout the Bible Belt that stand to lose access in the coming year. National organizations that distribute funds across states, like the National Network of Abortion Funds, are a good place to start. But donating to local funds, like the Yellowhammer Fund in Alabama, or Sistersong in Georgia, can have an even greater impact on those in states with restrictive laws, which need the most assistance bridging the gap in abortion access.
A loss, like the 2016 election, the appointment of Kavanaugh, and now, the loss of Ginsburg, can be galvanizing, which is what Marty hopes for now. She points to Alabama’s total ban on abortion in 2019 as one such moment: “When Alabama decided to pass a complete, total abortion ban, what did it do? It made the entire nation turn around and say, This is not something that we’re willing to stand for,” Marty told the Cut. “Money poured in. As a result, we were not only able to fund close to $500,000 worth of abortions within the last year, we were able to purchase a clinic that was about to close.”
I felt a similar galvanization in 2013, living in Texas when it passed H.B. 2. The loss drove more attention to the state of abortion in Texas than there had been since Roe. Protests organized regularly on the lawn at the state Capitol, and an entire abortion fund, Fund Texas Choice, was created to fill in the huge gap in access the state created with its highly restrictive legislation. Attention poured in from news organizations in Washington D.C. and New York City. Reporters flew down to the Rio Grande Valley—the edge of the country, a region difficult enough to access from within the state—to cover the reopening of a clinic in McAllen. The support helped the state make it through the five years it took the Supreme Court to eventually rule the law unconstitutional in 2018, and pushed reproductive rights to the front of peoples’ minds, which is necessary to making any sort of progressive change.
Something similar can happen here, amid the fury and fear over Ginsburg’s death.
“We need to invest in the people on the ground, invest in mutual aid, make sure that every group is supported, rather than just saying, ‘I care about the South, but I care about the South when it comes to Texas and Georgia, because those are places where we can make electoral wins, but you know, I’m not going to invest in Mississippi,’” Marty told the Cut. “We are never going to have power until people give us resources to have power there.”
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