10. 2021 is a Record-Breaking Year for State Attacks on Abortion. How Are Advocates Fighting Back?
90 abortion restrictions have already been enacted this year. That’s more than any other year since the Supreme Court’s decision in Roe v. Wade. More are on the way — but some states are fighting to turn the tide.
Guests:
Elizabeth Nash, principal policy associate for state issues, Guttmacher Institute
Kamyon Conner, executive director, TEA Fund
Virginia State Senator Jennifer McClellan
More resources:
Logo by Kate Ryan, theme music by Lily Sloane. Photo by Robin Marty.
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Garnet Henderson [00:01:09] Welcome to Access: A Podcast About Abortion. I'm your host, Garnet Henderson. It's 2021, and we have a Democratic president and Democratic majorities in the House and Senate. Yet this is the worst year on record for state level attacks on abortion access. That's according to a new report from the Guttmacher Institute. It can be really hard to keep up with what's going on in our national politics, let alone with what's going on in every state legislature. So today we're going to dig into some of these state level trends to get a better understanding of why they're so consequential. I want to emphasize that right now abortion is still legal in all 50 states. A lot of the laws we'll talk about today have not gone into effect. But with a conservative majority on the Supreme Court, we are looking at the very real possibility that abortion could soon become illegal in large parts of the country. As you've heard in previous episodes, it's often state laws, not federal ones, that create the largest barriers to abortion access. And if the Supreme Court overturns or further weakens Roe vs. Wade, state law will be the determining factor in whether or not you can get an abortion where you live.
Elizabeth Nash [00:02:36] The battle for a long time has been at the state level. And that means then that we have, because of the way the state legislatures have shaken out, you had these very conservative legislatures basically in the middle of the country. And more progressive legislatures in the West, the Northeast, throw in Virginia and some of the mid-Atlantic, Illinois, New Mexico. But you're talking about large areas of the country where restrictions are entrenched, access is incredibly limited, travel is generally required, and sometimes far travel. So you're adding hundreds of dollars to a procedure that already costs about $550. So, yes, yeah, the battle has been at the state level.
Garnet Henderson [00:03:21] That's Elizabeth Nash. She's the Principal Policy Associate for State Issues at the Guttmacher Institute. And she's one of the authors of the Institute's Midyear State Policy Trends Report.
Elizabeth Nash [00:03:34] We entered this year with more state legislatures becoming more conservative and an emboldened set of state legislators because of the changes in the U.S. Supreme Court. So we knew that the set up was, that we would see abortion restrictions. What we didn't know was how many. And so what we have seen, right now we have 90 abortion restrictions and bans enacted, and we're expecting some more coming down the pike. So, the year's not over. And yet we've already hit the highest level of abortion restrictions enacted in one year between 1973 and now. Most state legislatures will be out of session soon. So, while there are more restrictions kind of in the works, we will not see another 90. But I could see it breaking 100 even, so that's a very high number. And to give you a little sense of the perspective of what it means to hit 90 abortion restrictions, there were years, many years, between from 1980 to about the early 2000s, where we didn't have 10 abortion restrictions enacted in any one year. So to hit 90 is a very high number.
Garnet Henderson [00:05:03] So it may seem that abortion has always been controversial and state legislatures have always tried to restrict access, but that just isn't true. This is a trend that has accelerated dramatically over the last decade.
Elizabeth Nash [00:05:21] So, between 1973 and now, there have been 1,320 abortion restrictions enacted. In the past decade, there were 573 restrictions. That's about 40 percent of all the restrictions, in 10 years. So we've seen a very high volume. This has reshaped abortion access across the country. You have had these restrictions just piling on top of each other, making it very hard to keep clinic doors open, and making it very hard for patients to access care. You look at some states that have many abortion restrictions now, take Arizona or Kansas, for example, and up until the mid-2000s, there were enough political barriers in place to keep abortion restrictions from becoming law. And some of those barriers were a legislature that wasn't interested in pursuing abortion restrictions. Some of it was having a governor that would veto abortion restrictions. But in the past decade, both of those states have moved so far to the right, in both the legislature and the governor's office, that we now see a totally different legal landscape for abortion in both states. Now, that said, we currently have a Kansas governor that does support abortion rights, but the damage was done before.
Garnet Henderson [00:06:52] Many of the abortion restrictions that are now quite common, like ultrasound requirements, waiting periods and excessive clinic regulations, known as TRAP (or Targeted Regulation of Abortion Provider) laws, emerged in a big way in 2011. And there are a lot of parallels between 2011 and 2021.
Elizabeth Nash [00:07:16] To start off with, in fact, the setup is fairly similar in the legislatures. The 2010 elections shifted state legislatures and governors much further to the right, as we saw in 2020, and then these legislators were emboldened because they now had power to pass abortion restrictions. In 2011, what we were seeing also was the fallout from the Great Recession. State legislatures were dealing with the aftermath. We still had unemployment, there were housing issues, there were revenue declines for the states. There was all these things. Instead of dealing with a lot of that, they shifted to social issues, in particular abortion, to help gin up their base. Similar to what we're seeing right now, there are a lot, even more important pressing issues facing state legislatures. We are seeing efforts to address racial equity, coming out of a pandemic, dealing with unemployment, also declining revenues for states. And we don't see states totally embracing all of those issues. We see them working on harming people by taking away their civil rights, essentially, whether it's voting, the anti-trans legislation that we're seeing, abortion restrictions. So there's a lot happening.
Garnet Henderson [00:08:45] We're also seeing states that previously had no interest in abortion restrictions start to adopt them at a rapid pace. One of those is my home state, Wyoming.
Elizabeth Nash [00:08:57] Yeah, if you were to ask me what states I'm worried about: Wyoming and Montana. Wyoming and Montana are two states where, because of how the legislature has been set up or who's governor, we haven't seen a ton on abortion restrictions. And in both places, the legislature got more conservative in the 2020 election, and their governors are opposed to abortion rights. So we are seeing abortion restrictions gaining traction through the state legislatures. Montana adopted restrictions that you just would not have expected two, three years ago. Same with Wyoming. Wyoming now is beginning to adopt more and more restrictions over the past four years, and even trying to really set up the statutes so that abortion can be banned. Watching all of this unfold is deeply concerning. Certainly, the advocates in both states are working very, very hard. But the composition of the legislature is such that they are moving these restrictions and bans. So it's a heavy lift for the advocates.
Garnet Henderson [00:10:19] Anti-abortion policymakers are strategic. They often push similar abortion restrictions in many states at the same time. And Elizabeth says this year is no exception.
Elizabeth Nash [00:10:32] A lot of what we are seeing falls into really two big buckets. We're seeing a number of states move to enact abortion bans. And this is pretty connected to the new Supreme Court. And we're seeing them adopt near total abortion bans. So places like Arkansas and Oklahoma have adopted abortion bans that have these really exceedingly limited, nonexistent exceptions for issues like life endangerment. And then we're seeing states adopt six week abortion bans, which are also very early and comprehensive, in places like Texas, South Carolina, Oklahoma and Idaho. So we're seeing those kinds of bans really pick up in the numbers. And a part of that is because there's this anticipation that either these laws could kick start the court case--that is the case that gets to the Supreme Court that overturns abortion rights--or it's a ban in waiting. And by that, we're thinking about a different case is the case that overturns abortion rights, and then these bans have the opportunity to go into effect. So at this point, we have states across the South, the Midwest, and the Plains that have adopted early and comprehensive abortion bans. So now it really is coming to the point where things are going to be in the Court's court, so to speak. It's really in the hands of the Supreme Court at this point. And of course, we have the Mississippi 15 week abortion ban case pending there.
Garnet Henderson [00:12:22] Elizabeth is referring to a case regarding a Mississippi law that would ban abortion at 15 weeks. Remember the Pinkhouse Defenders from Episode 5? They are the escorts at Mississippi's last abortion clinic, which is the plaintiff in this case. Now, if the Supreme Court wanted to uphold precedent, it probably wouldn't have taken this case at all, because a law that bans abortion at 15 weeks is a clear violation of Roe vs. Wade. So the fact that they took this case at all is widely seen as a sign that the Supreme Court wants to revisit that Roe standard, potentially opening the door for many, if not all, pre-viability abortion bans to take effect.
Elizabeth Nash [00:13:10] The other trend to highlight is really around medication abortion restrictions. So we have seen great leaps in access to telehealth over the past year and a half, as a result of the pandemic. Perhaps this is one part of the pandemic that is something that we can take with us, is increased access to health care, ways to increase access to health care. That being the case, medication abortion can be provided through telehealth safely and effectively. We all know this. There's scads of evidence around this. The FDA is looking at rolling back the federal requirements. Right now they have eased some of the federal requirements, particularly around mailing the medication. Abortion opponents see this and they know how popular medication abortion is. So they are going after this method in a very big way. So we are seeing states pass essentially, you could call them mini-REMS. REMS is what we call the federal restrictions. What they're trying to do at the state level is replicate that. So they are adding in restrictions that ban telehealth for medication abortion, or they require the provider and the patient to be in the same room. They're also adopting restrictions on how far into pregnancy medication abortion can be used, nine or 10 weeks. They're saying, no, you cannot mail medication abortion. Oklahoma's going so far as to require certification of manufacturers or distributors of medication abortion. So we're seeing what you could call a hard press on access to medication abortion in many of the states in the South, the Plains, the Midwest, the conservative states.
Garnet Henderson [00:14:59] One state that has been in the news this week is Texas. We've talked a lot about Texas on the show because it is one of the most restrictive states in the country when it comes to abortion access. And it's a place where lots of abortion restrictions make their debut. They show up in Texas and then they show up in a bunch of other states a year or two later. In May, Texas Governor Greg Abbott signed a law banning abortion around six weeks, but this law is different from any previous abortion ban because instead of relying on the state for enforcement, it deputizes private citizens. So any individual who wants to enforce this law can sue a clinic, a doctor, or anyone else they suspect of helping someone get an abortion after six weeks.
Kamyon Conner [00:15:56] It makes me feel vulnerable. I feel I'm vulnerable, our organization is vulnerable.
Garnet Henderson [00:16:07] That's Kamyon Conner. Kamyon is the Executive Director of the Texas Equal Access Fund, or TEA FUND, which provides financial and emotional support for people seeking abortions in Texas. In Episode 6, we heard from a storyteller named Miranda who told us about her extremely difficult experience trying to get an abortion in the early days of the pandemic, when Texas had forced abortion clinics to shut down for several weeks. It was the TEA Fund that helped Miranda not only pay for her abortion, but figure out which clinics were open and when. This is exactly the kind of work that Texas lawmakers are trying to target, in addition to sowing fear and confusion among people who need abortion care.
Kamyon Conner [00:16:56] I know that one of their goals is to incite fear in us and waste our resources, like spend our money on attorneys defending ourselves, have to spend our time in court over here, now go here, now go to this small town, you know. And I'm angry. There's no reason for this. There's no reason and it's a direct attack on abortion funds, anyone who aids and abets. That's a direct attack on the work that we do to provide holistic care to people accessing abortion. But in doing that, they're also attacking someone's family member, someone's devoted partner. Right? Those folks are also open to lawsuits if they help someone and take them to a clinic. So it just really doesn't make any sense. And it makes me angry and frustrated with their lack of empathy all around.
Garnet Henderson [00:17:56] Remember when Elizabeth said that conservative lawmakers often turn to social issues, like abortion, in order to avoid dealing with problems like pandemic recovery? That's exactly what happened in Texas this year.
Kamyon Conner [00:18:10] You know, I just know that our elected officials don't really care about us. That's the vibe I'm getting based on everything that's been going down this last legislative session. They have done terrible things, like instead of increasing the amount of time that someone can have their pregnancy Medicaid. It was two months after, and they increased it to six months, but people were asking for 12, because the first year after delivery is like the postpartum year. If mothers have issues during that year, it's considered like maternal mortality death. And they would not extend it to the full 12 months, which tells me that they don't care about Black women, who have the highest maternal mortality rate in the state. They are attacking children, trans kids. They're passing open carry, no permit laws. I mean, it just, it doesn't make sense. So it was a very stressful legislative session.
Garnet Henderson [00:19:17] The TEA Fund does lots of advocacy work, too. So Kamyon went with other advocates to testify against the six week abortion ban known as SB 8 or HB 1515.
Kamyon Conner [00:19:30] It was scary and crowded, and it was the first time many of us had even ventured out of our homes. But that's how important this was to us. And I'm really glad that we got to have our voices be heard. And I saw folks who are sitting there that are elected officials who have law degrees, being like this doesn't make sense. This is not how the law works. But they were of the minority. So the bill passed through.
Garnet Henderson [00:20:02] A recent analysis from the Texas Policy Evaluation Project found that if SB 8 is allowed to go into effect, eight in 10 Texans seeking abortion care won't be able to get it in state. Their options would be to travel out of state, or remain pregnant when they don't want to be, or maybe try a self-managed abortion. And traveling out of state is really expensive.
Kamyon Conner [00:20:30] There are people who call us who, even after funding, still can't afford to get their abortion. So adding additional costs around travel, lodging, food, childcare, it's going to put people in, I think, dire situations. And I was talking with someone today and they were asking me, what do you think this is really going to cost people? And me and my staff, we've actually been recently talking about how much does it cost to have an abortion outside of the state? If there is a person in Texas who had to go out of state now because of our harsh restrictions, or just because they live in east Texas and Shreveport is closed or whatever the reason is. Say you had to fly, that's like $300 or more, especially if you take someone with you because you're supposed to have someone take you and pick you up from the clinic. You're not supposed to be alone. You're not supposed to necessarily travel alone either. So two flights or driving, gas money like $150, there and back. Hotel stays for two nights: hotels are like over a hundred bucks. So for two nights, that's at least $200 on top of $300 already, that's already five hundred bucks. You've got food for two days for two people, that's probably 60 to 80 bucks. You've got possible taxi or Lyft services, your actual procedure, which could cost upwards of $600. The average price here in Dallas for beginning abortion is anywhere between five hundred to seven hundred dollars. And then your pain meds, and then your nausea medication. And then what if you have to get the RhoGAM shot, which is an extra hundred bucks onto your your clinic bill? Then you have to get pads. And like, there's all these other costs that go along with it that I think people don't consider. And everyone in Texas will be having to navigate this, including minors who seek judicial bypass to access abortion care. They're going to have to navigate these situations too on top of the judicial barrier.
Garnet Henderson [00:22:47] SB 8 is not in effect. Abortion is still legal in Texas. And this week, a big coalition of reproductive rights and justice organizations, including TEA Fund, announced that they're suing to stop this law. We're going to dive into that lawsuit in a bonus episode next week. Because of this new civil enforcement mechanism, challenging SB 8 looks a little different from the fight over other abortion restrictions. So we're going to dig into all of that. Right now, I want to put another trend on your radar. Over 20 states have laws on the books that could be used to outlaw abortion if Roe vs. Wade were overturned. But some states are trending in the opposite direction. They're taking proactive steps to make abortion more accessible. Virginia is a great example of this. 10 years ago, Virginia was adopting abortion restrictions at a rapid pace. But in the last few years, they have managed to totally reverse that trend. To learn more, I spoke with Virginia State Senator Jennifer McClellan.
Jennifer McClellan [00:23:58] It started around 2010, and that's when the first ultrasound bill was introduced that actually made it to the floor in the House. I was in the House of Delegates at the time. And I was pregnant, at the time, with my first child. I was the first delegate to be pregnant while in office, which gave me a very different perspective on that and other bills. And we were able to defeat that bill that year, just by talking about the practical impact it would have on pregnant individuals in the doctor-patient relationship. But unfortunately, in 2012, that bill passed. The TRAP restrictions, Targeted Restrictions against Abortion Providers, that sort of regulated them as if they were hospitals and even got down to like how big the air ducts have to be. And frankly, I think, Republicans were in charge at the time of both the House, the Senate, and the governor's mansion. And I think they realized they overreached. And that began an awakening of women in Virginia who realized I've got to be more politically engaged than just voting. And then with the election of Donald Trump, really got even more women engaged. It really took, frankly, shifting the majority to a Democratic controlled majority. Every year, we would introduce a bill to try to proactively protect access. But it wasn't until the majority changed that we were successful.
Garnet Henderson [00:25:33] Last year, Virginia passed a bill, introduced by Senator McClellan, called the Reproductive Health Protection Act. This bill repealed several of the major abortion restrictions she just listed: the ultrasound requirement, 24 hour waiting period, and TRAP laws. It also allowed nurse practitioners, in addition to physicians, to perform abortions. This year, they passed another law introduced by Senator MacLellan repealing the state's ban on insurance coverage for abortion in plans sold on the health exchange. So I asked her, what's next for Virginia?
Jennifer McClellan [00:26:09] It's not just a matter of what's legal, but what can you afford? Do you have access to providers? Do you have transportation? Do you have insurance that will cover it? And at the same time, it is a constant wave of anti choice legislation. And you never know what's going to happen with the Supreme Court. So I would like to see us codify the principles of Roe vs. Wade in not only state law, but our state constitution so that it will be, access--legal access--will be protected no matter what happens at the federal level or at the Supreme Court. But continuing to remove artificial barriers through insurance. Because reproductive health is not just about pregnancy, but access to birth control in all of its forms. Access to any of the medical procedures you would need if you are making a transition, and access to sterilization, if that's what you want. And so making sure that we are removing not only legal barriers but financial barriers and providing--no matter what type of insurance you have--that you can access these services, that there is a provider near you, that you have transportation to get to a provider no matter where you live in the Commonwealth. So I think that's sort of the next frontier. We really need to make sure we are having more providers in more areas. Rural parts of Virginia, some urban parts, don't have a clinic or provider within a three or four or five in some case, eight in some case, hour radius. So making sure we have providers in those areas so that we don't have to pay for transportation, but also that we are providing access to medical abortions so that if you can't get to a clinic physically but you could receive a pill, we are doing that as well. So I think holistically making sure we are providing access to care. And then I would like to see a day where reproductive healthcare is not segmented away from the rest of healthcare, and that we would just think about it as it's access to care, period.
Garnet Henderson [00:28:32] And Virginia isn't the only state making some progressive changes. Here's Elizabeth again.
Elizabeth Nash [00:28:39] Every year we're seeing more and more steps being taken in Virginia. It's an amazing story and one that is filled with a lot of hard work, effort, sweat, all of the things. And Virginia is joined by other states this year in moving some progressive measures. For example, Washington is going to require colleges, in their health plans, cover abortion. We are seeing other states move some really good efforts. New Mexico repealed its pre-Roe abortion ban. So in case the Supreme Court does overturn abortion rights, no one could enforce an abortion ban in New Mexico. Hawaii now is allowing advanced practice nurses to provide abortion within the first trimester. Colorado is expanding how public funds can be used for abortion. So we're seeing some movement around some abortion protection. There's a bill in New Jersey now that really could reshape their legal landscape, too. And it's a bill that would protect abortion rights, as well as access to contraception, sterilization, other reproductive health, right? We put that into law and it would repeal some of the odds and ends of abortion restrictions that happened to be in New Jersey and really solidify that New Jersey supports abortion rights and reproductive health. This bill was introduced at the end of last year and we haven't seen much happen with it. But there's really, there's some hope that this bill will move. And it would really be incredibly helpful for both the Northeast and the mid-Atlantic to have New Jersey take these steps.
Garnet Henderson [00:30:36] I asked Senator McLellan if she's worried that the tide could turn back in the other direction.
Jennifer McClellan [00:30:41] Absolutely. I'm always concerned about that. I think because I saw what happened when the first 14 years I spent in the legislature was under Republican control. And I saw the bills they were introducing. And I saw the bills we couldn't get out of committee, if they got heard at all. And I saw them overreach when they controlled all three levels of government. And the Reproductive Health Protection Act and the bill I just passed were passed on party line votes. And I think it's important to remember not every Democrat is pro-choice. Both of those bills actually passed on a 20-20 vote with the lieutenant governor breaking the tie. And most people don't think the lieutenant governor is that important, but here in Virginia, it is. So we have got to make sure we are being vigilant at every level. And it's always an issue, whether the candidates talk about it or not. It is it is always an issue.
Garnet Henderson [00:31:34] In addition to being vigilant, Senator McClellan says we need to keep talking about abortion.
Jennifer McClellan [00:31:40] Part of our success here was storytelling. I think sometimes legislators and advocates get so focused on the policy and the logic, but what often works is just the practical story. Here's how these bills impact my healthcare. Here's how these bills impact my life decisions. And we avoided, we had a personhood bill that we thought was going to pass a few years ago. But the reason it didn't was because there was a Republican senator who heard a line of women telling their stories about how that bill would have impacted them in very tragic situations. And he walked in planning to vote for the bill. He voted no. And when asked by the press, he said, I could not tell those women that I knew better than them what they should do in those situations. And the stories I would tell on the floor, that I heard because as a pregnant delegate talking to my doctor about how these bills would impact her relationship with her patients, I told those stories on the floor. And we can't shy away from those stories, because this is not a hypothetical exercise. These are real people whose access to healthcare would be blocked, or is already being blocked. And it is critically important we tell those stories and center those stories in whatever policies we're trying to get passed. And that's a big part of how we succeeded here in Virginia and how we need to continue to move forward.
Garnet Henderson [00:33:20] And Elizabeth said it's important to keep in mind that existing laws are already really limiting access.
Elizabeth Nash [00:33:28] One of the things coming out of this year, I think, is a real concern that when we see abortion bans, then people will think that's really the things we need to be worried about. Yes, we need to be worried about that, but there are all kinds of other restrictions that we see that have real impact on care, whether it's a waiting period, counseling, limits on health plan coverage, method restrictions, right? Those impact care, too, but they almost seem moderate when we're talking about abortion bans. And then the other piece is that while we're talking about abortion bans, we have to be very clear to say that abortion remains legal and accessible and clinics are open. People hear abortion ban, and then clearly, I understand why they become concerned. I'm concerned, too. But knowing that abortion remains legal and there are people to support patients, to accessing care is also very important too.
Garnet Henderson [00:34:31] You might be thinking, OK, there's hope for states like Virginia and New Mexico, but Texas, they're too far gone. This is an attitude I've encountered a lot, and I wanted to give Kamyon a chance to respond.
Kamyon Conner [00:34:47] We're not too far gone. Like I've been in a space with other repro folks from all over the country. And folks have like a weird connotation around Texas because of the harsh restrictions and like, oh, poor you, but that's what it's like. But there are some really fierce advocates here trying really hard to, like, not have it be like that and doing really radical and healing work to support people around the things they're experiencing and the harm that's being done from our actual government. And that with this whole SB 8 thing, I really feel a little hung out here to dry. In other times, other states, folks have been like, I can't believe that's happening there or whatever. But I think just coming off the heels of a pandemic and the mental health crisis that our country is in, I think it's harder to be an advocate. But I just want people to know, now is the actual time to be bold and brave and out there. Like, if you're an abortion advocate, we need you to talk about abortion every day. Wear your abortion shirts, anything you can do to normalize abortion, because it is a routine part of pregnancy care. There will always be the need for abortions as long as people get pregnant.
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Garnet Henderson [00:36:32] Access is produced by me, Garnet Henderson. Our logo is by Kate Ryan and our theme music is by Lily Sloane. Many thanks to today's guests. If you have an abortion story you'd like to share, you can email me at Accesspodcast@protonmail.com. That's in the show notes as well. Remember, you can donate to the show by visiting glow.fm/apodcastaboutabortion. That's in the show notes too. Don't forget to subscribe to Access wherever you get your podcasts, and leave us a rating or review so more people will find the show. Follow us on Twitter and Instagram at ACCESSpod. A full transcript of this episode will be available on our website, apodcastaboutabortion.com.
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