After the Day: Dobbs Has Not Stopped Abortions

When I was invited to serve as editor for this section of Against the Day, I thought to myself that perhaps I should ask to have it retitled to reflect what it means to organize after the loss of rights rather than against the possibility of that taking place. All of the contributors to this section worked to prevent the day that arrived on June 25, 2022, when the Dobbs v. Jackson Women's Health Organization decision was handed down by far-right members of the Supreme Court, but the material here focuses on the evolving situation post-Dobbs, post-loss of bodily autonomy for far too many people with the capacity to become pregnant. Our work now reflects what it means to live through a moment of catastrophic political loss—of rights, of recognition, of autonomy—and continue the struggle to reimagine and recreate a path toward justice in the face of escalating institutional oppression.

Where Are We?

At this writing, half of US states have enacted some form of restrictions on abortion that violate the framework provided by Roe v. Wade. Just over one in four states (fourteen total) have imposed a broad ban on abortion, at times based on gestational age (starting at six weeks), and ten more are classified as “hostile to abortion” by the Center for Reproductive Rights (2023). On a positive note, more than one in three states have put in place specific protections for abortion and/or taken steps to expand access. Access to abortion in the United States embodies a patchwork of laws, geography, and access to resources such as money, time, and information; although this has long been true at a certain level, the post-Dobbs restrictions have changed the game profoundly.

In spite of this, the average number of abortions per month from June 2022 to June 2023 not only did not fall but appears to have increased slightly (Society of Family Planning 2023). These averages reflect composite national data from abortion providers; abortions declined dramatically, or ceased entirely, in states with bans and increased significantly in bordering states where abortion remains legal and from telemedicine providers who ship pills to all states. According to the CDC, there was no statistically significant change in the birth rate in 2022 compared to 2021 (Hamilton, Martin, and Osterman 2023). However, national statistics do not reflect state-level experiences, and a study of births in Texas found an increase of 3 percent from April to December of 2022 (Bell, Stuart, and Gemmell 2023). This increase began seven months after the start of SB8, the Texas law banning abortion after six weeks and continued as the fall of Roe enabled abortion bans in some neighboring states. In human terms, ninety-eight hundred more people gave birth in Texas in the second half of 2022 than would have been expected to have done so based on data from previous years, an unknown number of whom experienced a profound loss of control over their own bodies and lives as a result of changes in abortion laws.

The numbers in the previous paragraph reflect only part of the story. Clearly, some people who live in states where abortion has been banned or severely restricted traveled to states where they could obtain an abortion from a licensed provider, while others may have obtained pills through the internet or from friends. None of these statistics communicates the actual experiences of the human beings involved, their fears and struggles, and how their lives were temporarily or permanently changed. Above all, the only data we have access to about abortion, now or in the past, reflects abortions with licensed providers. Aid Access, one of the largest international providers of abortion pills, reported that it received five thousand more requests for pills per month after the Dobbs decision than before (Miller and Sanger-Katz 2023). It is impossible to know how many abortions have actually happened in the United States, especially over the past ten to fifteen years as access to medication has made abortion outside the medical system safer and easier. But we must also remember that restrictions on abortion have profound effects on women's health care, far beyond the statistics on abortion and birth, as doctors grapple with how to respond to obstetric emergencies without breaking the law and with questions about where they can ethically practice medicine. Jamila Perritt and Andriana Scencirro analyze the dynamics of our current situation for medical providers in this edition of Against the Day.

How Did We Get Here?

Abortion is often siloed medically, socially, and politically, but we cannot understand the current situation without an analysis of the larger contexts of reproductive (in)justice and the erosion of democracy. It is tempting to trace the loss of abortion rights through the steady procession of court cases and legal restrictions—the Hyde Amendment, the Casey decision, an endless series of state-level laws targeting providers, et cetera—each of which narrowed the possibilities for obtaining (and providing) abortion services. A focus on the growth of these corrosive limitations, however, obscures larger questions about democracy and power. Similarly, the path to bodily autonomy lies through demands for justice and human rights, not the restoration of a limited legal framework of privacy.

The antiabortion and “pro-family” movements have gained power both domestically and internationally in the twenty-first century yet represent only a minority of the population in the United States. Fundamental rights like bodily autonomy should never be subject to majority vote, but in practice the post-Dobbs landscape clearly demonstrates that when abortion rights are placed on the ballot, even in conservative states like Kansas and Ohio, a majority of voters support laws and even amendments to state constitutions that protect the right to an abortion.

When a minority position gains significant power within multiple levels of government, as has happened in the United States with the Republican Party and the Supreme Court, then we need to ask questions about democracy, not legal precedent. In relation to abortion and reproductive justice, I want to focus on a few key social-historical issues that have had a significant impact on the regulation of abortion and on bodily autonomy more generally, often indirectly through transforming democratic processes in a way that enhance the power of a far-right minority. The United States describes itself as a model of democracy, yet key policies and rights are overturned by legislators who represent significantly less than half the population and by judges appointed by a president who lost the popular vote (but not the electoral college).

A true history of how we arrived in our current political context would require a multivolume set, not a few hundred words, so I will use this space to highlight three issues that I believe are central but that receive relatively little attention in mainstream coverage of reproductive rights. The first is the war on drugs, which even few reproductive justice activists think of as playing a central role in relation to abortion rights but was in fact an early pathway to attacking the rights and bodily autonomy of pregnant people. The second is the war on terror, which again seems distant from abortion but has had a profound impact on social protest over the past twenty-plus years in ways that significantly shape democratic process. Finally, the third is the relentless attacks on voting rights and access to the vote, especially in Black, Brown, and low-income communities. If everyone with the formal right to vote was able to actually do so and have their vote counted equally, then the United States would be a profoundly different country.

Among progressives, the war on drugs may be best known for the mass incarceration of Black and Latinx populations, but a lesser-known element has been the criminalization of pregnant women who use drugs—often using child protection laws (Kavattur et al. 2023). For example, a woman in Michigan was pregnant when she was charged with violating her parole due to a relapse while in court-ordered drug treatment and was returned to prison on the grounds that the fetus would be safer if she was incarcerated (Kavattur et al. 2023). In other cases, pregnant women have been charged with child abuse or endangerment based on substance use during pregnancy, even when the pregnancy resulted in a healthy birth (Kavattur et al. 2023). The use of child endangerment frameworks in relation to a fetus elevates the fetus to the legal status of a child and effectively relocates the pregnant woman from an autonomous person to an incubator. This legal maneuver mobilized deep societal prejudices against low-income women, especially women of color, and drug use to make cultural and legal arguments that elevate the fetus over the pregnant person without ever mentioning the word abortion.

When the Dobbs decision came down, the streets of lower Manhattan were filled with protesters, but many other parts of the country had smaller-scale vigils rather than mass events. In the wake of September 11, 2001, Americans have steadily become accustomed to enhanced surveillance and control over public space, from searches at public buildings and airports to the militarization of policing practices and equipment. Black Lives Matter has retained some ability to turn out significant numbers of people in multiple cities, but overall there has been an escalation of repressive strategies, from tightly controlled “free speech zones” that contain protesters inside metal barricades, to kettling marchers (a containment strategy that usually results in arrest), to violently clearing peaceful protest and the use of domestic terrorism charges against people organizing nonviolent actions. The most recent examples of the latter involved the protests against Cop City in Atlanta, where one protester was killed, and several others have been charged with domestic terrorism (Brown 2023) over nonviolent protests. Public protest is a vital form of democratic expression and dissent, and the effectiveness of repression over the past twenty years creates the impression of public consent or indifference—when nothing could be farther from the truth.

The assault on voting rights has a very direct connection to reproductive justice and abortion rights, given the gap between public opinion on abortion and the laws imposed by state legislators. When abortion itself is on the ballot, voters in red states have consistently supported legal access—as demonstrated most prominently by Kansas and Ohio but also indirectly in Kentucky, where a somewhat ambiguous antiabortion amendment was defeated. Republican-dominated state legislatures are now trying to make it harder to put abortion rights on the ballot (Zernike 2023), limiting the democratic expression even of Republican voters. The current membership of the Supreme Court also reflects the triumph of nondemocratic institutions and political practices, including the electoral college and the Senate process for approving Supreme Court justices. These antidemocratic processes intersect around reproductive (in)justice in the United States; the policing of pregnant bodies in the service of the fetus, the steady repression of public protest as a form of democratic expression, barriers to voting, and the use of antidemocratic strategies such as gerrymandered congressional districts have all combined to enable the criminalization of bodily autonomy and the banning of certain forms of health care. These are all part of the expansive context of the Dobbs decision and the current politicization of abortion care.

What Does Resistance Look Like in 2023?

When self-determination and bodily autonomy have been restricted or outright banned, then asserting control over one's own body and life—or supporting someone else to do so—become profound acts of resistance and solidarity. Much of this resistance, however, takes place within networks of friends who come together to offer assistance during a particular moment in someone's life, and/or among long-standing networks of activists who know how to circulate resources within their communities in ways that do not increase anyone's risk. In the twenty-first-century United States, the central risk of abortion outside the medical system, the one that underlies all the potential health threats from desperate attempts to get rid of an unwanted pregnancy, is the risk of criminalization: the criminalization of communities of color and low-income people, the criminalization of bodily autonomy for people with unwanted pregnancies or nonconforming gender identities, and, at the pragmatic heart of the problem, the criminalization of abortion medications and their use in community settings. The essay by Farah Diaz-Tello analyzes the legal dynamics and risks surrounding abortion and criminalization.

In states where abortion has been restricted or banned, resistance takes form on the ground through travel, through abortion funds and the informal sharing of resources among friends/family, and through self-managed abortion (SMA) using pills obtained from any number of sources. Plan C has tested pills from many online sources and found that all were sufficiently pure to safely induce an abortion. Feminists in Mexico have formed networks of solidarity with reproductive justice activists in the United States to share information, medication, and support for individuals through the process of self-managing an abortion. As described by Susan Yanow, SMA has a long history globally and in the United States, and sharing information about how to safely use pills is a legal and essential form of community resistance. The experience of having an abortion may at times be complicated for people facing an unwanted pregnancy, but it is far from impossible, as described by Renee Bracey Sherman from We Testify.

The issues discussed earlier in this essay as factors that erode democracy and enabled the pathway to Dobbs, like the wars on drugs or terror, have amplified the role of criminalization within systems of power and shape resistance in complex ways. The phrases social movements and civil disobedience generally evoke images of marches, blockades, and other forms of public defiance in which the public nature of the action shapes the meaning and power of the defiance. The original definition of civil disobedience, however, was the refusal to follow unjust laws, and reproductive justice activists throughout the United States (and the world) quietly break laws restricting access to abortion every day. These forms of civil disobedience emerge from a clear understanding of the risks faced by communities vulnerable to criminalization and create forms of direct action that enable bodily autonomy for people with undesired pregnancies. This doesn't mean that support for people seeking abortions and/or resistance to abortion bans must be clandestine, and organizations take different paths based on context and types of actions, but the forms of action and visibility must be determined by those working on the ground in a particular context or community.

The most important things those of us in safer states/locations can do in this current historical moment involve listening to those who live within riskier environments, sharing resources, and working together to organize a movement for reproductive justice. In the summer of 2022, in the immediate aftermath of the Dobbs decision, someone I know reached out, asking, “What can I do, how can I get involved?” We talked about what she might be able to do from New York City. A few months later she told me that she had reconnected with a network of women she knew through domestic violence work who had direct ties with communities in need of support. It takes time and work to build genuine alliances based in respect, relationship, and solidarity, but those alliances provide pathways forward into fundamental social change and more immediate support for those who need it. Money is a scarce resource that can enable many forms of action, and providing it through personal donations and fundraising can be a vital form of activism and solidarity, an understanding developed more fully in the essay by Shannon Cofrin Gaggero.

While the United States faces escalating attacks on bodily autonomy for almost everyone who is not a cisgendered, heterosexual, white male, feminists across Latin America have won a series of victories based on justice and human rights. Across the region, countries have moved forward in significant ways, largely based on frameworks that center the rights of women and others who can become pregnant rather than centering privacy and medical power. The past few years have seen a cascade of legal changes in response to powerful feminist movements at national and regional levels (Vacarezza 2023): Chile overturned a complete ban on abortion in 2017, Argentina legalized abortion through fourteen weeks in 2020, the Colombia high court legalized abortion through twenty-four weeks in 2022, and the Mexican Supreme Court issued their first ruling on decriminalization in 2021, followed by a second, more sweeping decision in September 2023 that fully decriminalized abortion throughout Mexico. The success of La Marea Verde (the green tide) and the immediate support from Latin American activists in the wake of the Dobbs decision echo and reinforce the consistent demands from African Americans and other feminists of color in the United States for a feminist movement that works from a rights-based framework to demand reproductive justice for all. The pathway forward has to reject strategies that silo or isolate abortion as a single issue to combine pragmatic assistance for those facing undesired pregnancies with broad-based and radical feminist organizing for justice and human rights.

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