Over the summer, local lawmakers in Texas tried a new tactic for banning abortion in their communities: Since they didn’t have the power to pass state-level bans and restrictions like the ones coming out of Alabama and Georgia, they passed city-wide ordinances instead, declaring their small Texas towns “sanctuary cities for the unborn.”
With Roe v. Wade still on the books, these ordinances prohibiting abortions within city limits are unenforceable. But according to Texas-based abortion rights activists, they succeeded in sowing stigma and shame around abortion, and misleading residents about whether they could still access the procedure. “These ordinances cause confusion and intimidation because it’s hard for many people to tell what laws are in effect,” Aimee Arrambide, the executive director of NARAL Pro-Choice Texas, told VICE at the time.
Local activists are still fighting the anti-choice “sanctuary city” ordinances as they spread throughout Texas, but they’ve also begun to consider a new strategy: What if abortion rights activists partnered with local lawmakers to create “sanctuary cities” of their own?
The idea stems from a forthcoming paper in California Law Review, which outlines how abortion rights supporters could adopt the sanctuary city model put forth not by anti-choice lawmakers in Texas, but by cities like New York City, Los Angeles, and Chicago, which have policies to shield undocumented immigrants from federal laws.
Abigail Burman, the third-year University of California, Berkeley, law student who authored the paper, said this approach would mean using the often-untapped governing powers of municipalities to protect people seeking abortions, particularly those who manage their own abortions outside of a clinic setting—a practice that is explicitly criminalized in five states: Arizona, Delaware, Idaho, Oklahoma, and South Carolina. (It was seven until New York and Nevada repealed their criminal statutes last year.)
“Conservatives have attempted to co-opt the term ‘sanctuary city’ in the context of abortion,” Burman said, referencing the wave of anti-abortion ordinances in Texas cities. “It’s important to think about how to take that language back and re-envision cities as places that are welcoming to people who seek abortions.”
As Burman conceives of them, sanctuary cities for abortion would provide the public with information and resources for self-managing abortions with the pills mifepristone and misoprostol, drawing on the sorts of harm-reduction strategies public health departments and grassroots organizations have used to address the opioid crisis.
She imagines cities publishing the World Health Organization guidelines on self-managed abortion—which affirm that using abortion pills outside of a clinic context is safe and effective—on government websites, and establishing 311-like hotlines staffed by activists who can provide residents with information about how to safely self-manage an abortion and help callers access in-clinic care, if they would rather go that route. (The reproductive justice group If/When/How currently runs a nationwide hotline to help people with legal concerns about self-managing, though they don’t offer guidance on how to use abortion drugs at home.)
Abortion sanctuary cities would also limit the extent to which healthcare personnel collect and report information about people who attempt to end pregnancies on their own: One of the few U.S. cases where someone was arrested for self-managing an abortion involved an Indiana doctor who reported a patient seeking care for what she said was a miscarriage to the police—the doctor suspected a live birth and abandoned baby and was legally required to report suspected child abuse to authorities. The patient, Purvi Patel, received a 20-year sentence for attempting to self-induce an abortion under the state’s fetal homicide law after police found evidence of her ordering abortion pills online.
Thirty-eight states have laws on the books similar to Indiana’s—that is, criminalizing harm to fetuses. But advocates say arresting people who self-manage abortions under those laws amounts to prosecutorial overreach; the laws were meant to protect pregnant people from other people harming them. Since 2011, there have been just eight cases where someone has been charged with self-managing an abortion, and the charges were eventually dropped in half of them, according to If/When/How. (A judge later reduced Patel’s sentence, ruling that the Indiana fetal homicide law likely wasn’t intended to punish pregnant people. Patel was released from prison after serving at least 18 months.)
Burman said mandatory reporting laws leave a lot of room for doctors and healthcare personnel to misinterpret them, and help state and federal authorities prosecute people who attempt self-managed abortion even when the law doesn’t explicitly criminalize it.
“In the sanctuary city model, cities could hold trainings so medical professionals aren’t reporting cases of possible self-managed abortion out of concern they could be violating the law,” Burman explained.
Farah Diaz-Tello, senior counsel at If/When/How, said Burman’s proposal reflects what she and her colleagues are recommending to people on the “front lines” of abortion care across the country, like healthcare workers and activists who run abortion funds. Like Burman, she says providing people with accurate information about self-managed abortion with pills should be a public health concern.
Self-managed abortion is often a response to anti-choice restrictions or barriers to the procedure, like cost, that put in-clinic care out of reach. When people don’t know how to do it properly they may try methods that are less safe or less effective, and may fear seeking out medical help if the procedure isn’t successful.
“What [Burman] suggests is exactly the kind of thing that advocates who are trying to ensure people aren’t criminalized for ending a pregnancy are thinking of—how to leverage the power of the state to protect people who are self-managing,” she said. “That means ensuring people are shielded from the harms of criminalization, which include not just being arrested and going to jail, but the health risks that come along with the fear of criminalization.”
The information campaign central to Burman’s sanctuary city model could also help destigmatize self-managed abortion with pills, advocates say.
It may be that more people than ever—at least since Roe was decided in 1973—are interested in self-managed abortion and see it as a viable alternative to in-clinic care. In fact, more people are starting to prefer it to in-clinic care, regardless of whether their state laws are restrictive or not.
But it’s been difficult to get the public to completely decouple at-home abortion from the specter of dangerous, “back-alley” procedures pre- Roe, and harder still to convince lawmakers (even pro-choice ones) to risk their political capital by speaking out about it.
“People who aren’t steeped in this knowledge still see self-induced abortion as involving a coat hanger,” Arrambide, the executive director of NARAL Pro-Choice Texas, said on Monday. “With a policy like this, you’d be able to educate people on exactly what self-managed abortion entails and just how safe it is.”
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The sanctuary city model has its limitations: As is the case with sanctuary city designations for undocumented immigrants, a city can’t guarantee absolute protection to its citizens if it’s at odds with state and federal laws. Cities can also be stymied by “preemption,” a legal concept that allows the state or federal government to lay claim to certain areas of the law, and prevent lower governments from enacting legislation on the same subject.
But there’s precedent for how both anti-choice and pro-choice lawmakers have already managed to dodge state preemption. In addition to the anti-abortion city ordinances spreading throughout Texas, officials in at least nine cities have used local zoning laws to block the construction of new abortion clinics, and allow for fake clinics—known as crisis pregnancy centers, or CPCs—to go up instead. And in a win for abortion rights supporters, the Austin City Council approved a budget in September that would set aside $150,000 to pay for expenses like travel and lodging for people seeking abortions in the state—a way to get around a Texas law the prohibits state funding from paying for the procedure itself. (New York City did the same months before, but there’s no state law prohibiting the funds from going directly toward abortion.)
Though these actions weren’t directly at odds with state mandates, they did defy preemption by putting abortion-related policies in place when abortion laws are typically the purview of the state and federal government.
Arrambide said these are the kinds of imaginative solutions pro-choice organizers and lawmakers need to be thinking about. She and her colleagues at NARAL Pro-Choice Texas regularly meet with local lawmakers in Austin and Houston—two blue cities in Texas— and she plans to continue conversations about hyper-local responses to barriers to abortion care.
“One thing I’ve learned as an advocate in Texas is that you have to find creative solutions and you make sure you’re exhausting every avenue to bring access to people,” Arrambide said.
A looming Supreme Court case threatening to gut Roe v. Wade and make it harder to challenge abortion restrictions has made finding new avenues for access all the more vital for abortion rights advocates. But even with Roe in effect, for millions of people across the country, the right to an abortion is little more than an idea. Many people are already living in a post- Roe climate, Burman said—it’s time to think more seriously about how to go beyond the rights outlined by the 1973 ruling.
“The movement has really gotten boxed into a corner of having to focus on the Constitution as the only way to protect access to choice,” Burman said. “But now’s the time to think, ‘What do we want abortion access to look like in the U.S.?’ instead of ‘What can we manage to scrape out of what’s left of Roe?’”
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