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Restore Roe, or go beyond it? The question is fracturing the abortion rights movement

This article was originally published in Mother Jones.

AfroLA’s Take

Bans on abortion disproportionately affect Black, Latine and Indigenous women. In states with restricted access, Black women made up the majority of abortion patients in the 12 months before Roe v. Wade was overturned, according to the Guttmacher Institute, a reproductive health research and policy group. Debates within the abortion rights movement as to whether to uphold the viability standards set forth by Roe v. Wade—that abortion is legal and protected by a right to privacy until 24 to 28 weeks of pregnancy—or to forgo viability standards and other restrictions to access entirely, are muddying the waters as abortion rights groups construct ballot initiatives to put on the 2024 ballot. Many women involved in the movement, especially women of color, are deciding to wait until proposed ballot measures include more bodily autonomy than viability standards can give. The debate continues, and will continue, as the election draws closer.

Not long after Election Day 2022, Pamela Merritt joined a call with other abortion-rights activists in Missouri to discuss a daring proposal: sidestepping the state’s ruling Republicans by directly asking voters whether to add abortion rights to their state constitution. The group hoped to capitalize on a recent trend. Since the Supreme Court overturned Roe v. Wade in June 2022, pro-choice voters had been showing up to the polls in force, rejecting anti-abortion ballot initiatives in Kansas, Kentucky, and Montana. They went even further in California, Michigan, and Vermont, passing state constitutional amendments to guarantee, among other things, the right to choose abortion.

This unbroken string of victories has energized advocates who see ballot initiatives as a key tool in the post-Roe world, especially in states controlled by Republicans. Even in Missouri, where the anti-abortion movement was so successful that only one clinic remained by 2022, national progressive organizations smell opportunity. “Right now, every single state is dealing with a pro-abortion, riled-up base that wants a Kansas,” Merritt says, referring to the special election about abortion last year that drew greater turnout than any primary in the state’s history. “There’s pressure.”

Merritt, who runs the advocacy group Medical Students for Choice, is a veteran of the reproductive justice movement. She has seen how, since Roe, the anti-abortion crusade forced advocates to compromise on their principles again and again. How the flawed laws that resulted often required providers to follow rules not based in science or medicine, and made abortion a right in name only in large swaths of the country. And how the limitations fell hardest on those with the least means or ability to travel to get care. With the slate wiped clean without Roe, Merritt and like-minded activists see an opportunity to build a more comprehensive, and holistic, future of abortion access.

“We, as a movement, have an opportunity right now to live our values.”

But not everyone at the Missouri ballot table was on the same page about how to move forward. In the months following the 2022 election, the group—a mix of advocates including the state ACLU and Planned Parenthood affiliates and the local activist group Abortion Action Missouri—splintered. Some members, including Merritt, wanted to go with language that would enshrine a broad right to abortion. Others wanted to consider an amendment with baked-in compromises in the hopes of winning over more voters. They proposed letting the state impose or preserve restrictions that the larger abortion-rights movement often condemns, including a ban on procedures after so-called fetal viability—the hard-to-pin-down point in pregnancy at which a fetus has a decent chance of surviving outside the uterus. (Viability limits often include an exception for abortions needed to protect a pregnant patient’s life or health.)

The disagreement became so heated that Planned Parenthood of the St. Louis Region and Southwest Missouri, operator of the last clinic standing in the state in 2022, paused its work on the ballot effort this spring, and has spent months warning its coalition partners about the harms of the proposed restrictions. “We, as a movement, have an opportunity right now to live our values,” says Colleen McNicholas, the affiliate’s chief medical officer. Versions of the ballot initiative currently on the table would “recreate the very system that led to fewer than 100 Missourians being able to access abortion” in-state each year, she says.

Mallory Schwarz, the executive director of Abortion Action Missouri, disagrees. “These policies would restore a level of access that the state hasn’t seen, ever,” she says. “It’s frustrating to see partners try to hold Missourians hostage while waiting for the moment for that perfect policy.”

This fracturing has cast doubt on whether a version of the initiative will even make it to the ballot next year. The effort is already facing vigorous opposition from GOP state officials who have falsely described the proposals as costing billions and allowing for “dangerous, unregulated, unrestricted” abortion access. At present, it’s unclear whether a campaign for an abortion-rights constitutional amendment would receive the support of the state’s sole former abortion provider—or from the national Planned Parenthood Action Fund, whose national campaigns director, Sarah Standiford, says it will “follow the lead of state affiliates.”

Unwilling to support a ballot measure that comes with restrictions on abortion access, Merritt and Medical Students for Choice stepped back from the coalition in July. “The abortion rights and health movement has been in a death spiral of compromise for about 30 years,” Merritt says. “We have an opportunity here to build something better, and we’re not even talking about it.”

This battle over what the abortion-rights movement should fight for is playing out across the country, as activists in OhioArizonaFloridaNebraska, and South Dakota are working on ballot initiatives, mostly for the 2024 cycle.

To Erika Christensen and Garin Marschall, the story in Missouri—and particularly the fight over fetal viability limits—follows familiar patterns. The wife-and-husband team became activists after Christensen had to travel for her own abortion later in pregnancy. In 2016, doctors told her that the baby boy she’d been carrying for 31 weeks wouldn’t be able to breathe outside her body. But Roe only protected the right to abortion until viability, and at that time her home state of New York had a criminal ban on terminating pregnancies after 24 weeks unless a mother’s life was in danger. Christensen flew to Colorado, a state without a viability limit, to get a shot that would stop the baby’s heart. Then, because she had preexisting health conditions, she flew home to deliver him with her doctors.

The legal concept of a “viability” line has never matched medical reality. The idea was conceived of by a clerk for Justice Harry Blackmun who sought a middle ground between abortion supporters and opponents when the Supreme Court was considering Roe v. Wade in the 70s. Today, it is generally thought of as occurring about 24 weeks into pregnancy. But the American College of Obstetricians and Gynecologists (ACOG), a leading medical association, describes viability as a complex calculation involving gestational age, sex, genetics, weight, and the circumstances of delivery, such as whether intensive neonatal care is available. “It’s talked about as this very simple line in the sand, and that couldn’t be further from the truth,” says Jenni Villavicencio, one of a handful of doctors in the country who provides abortions in all trimesters. For that reason, ACOG says it strongly opposes policymakers “using viability as a basis to limit access to evidence-based care.”

“Viability is talked about as this very simple line in the sand, and that couldn’t be further from the truth.”

As of 2020, fewer than 1% of abortions took place after 20 weeks’ gestation. Patients are generally experiencing harrowing circumstances: In addition to women like Christensen, who receive catastrophic news about a pregnancy, they tend to be very young, in an abusive relationship, or facing other tremendous barriers to getting care. “I totally understand why folks may have complex emotions or even react negatively to the idea of abortion later in pregnancy,” Villavicencio says. “What I would hope is that folks will recognize that these are really unique situations in which people are making decisions that make sense for them in their own lives, and they’re doing so extraordinarily thoughtfully.”

Not long after Christensen flew to Colorado to end her pregnancy, she and Marschall joined a campaign to remove New York’s criminal penalties for later abortion. Yet the law they helped pass, the Reproductive Health Act of 2019, ultimately maintained a viability line in the form of civil sanctions for doctors who performed abortion after 24 weeks, with exceptions to preserve the mother’s health, and in cases of fatal fetal diagnoses. The pair say that state senate Democrats shot down their pleas to consider a more expansive version.

Disappointed with the limitations of the new law, they launched a philanthropy-funded project called Patient Forward to keep advocating against viability bans nationally. They soon realized they had their work cut out for them. Over the last half a year, Marschall and Christensen have watched with dismay as coalitions in OhioFlorida, and Missouri proposed measures that would protect abortion but allow viability bans. As they researched the initiatives, they began hearing from colleagues on the ground that the language was based on confidential polling. “What they were telling us is that we have to compromise, because if we go for broad protections with no viability limit, it’ll never pass,” Christensen says. The conclusion is in line with the popular sentiment that later abortion is unpalatable—an idea reinforced by right-wing politicians when they decry “abortion up until the moment of birth” in response to any pro-choice proposal, falsely implying that later abortions are common, casual decisions.

Without access to the polling data their colleagues were citing, Patient Forward decided to commission a survey of its own this summer, asking the public opinion research firm PerryUndem to measure whether voters were more likely to support an abortion-rights amendment if it permitted viability restrictions.

To the couple’s surprise, they were not. The findings that came back showed that nationally, voters were 15 points more likely to “definitely vote yes” on an expansive abortion-rights ballot initiative, compared with one that allowed a viability limit. When asked why, most respondents said they did not want government controlling any decisions about abortion. “I literally cried when I read the results,” Christensen says. “I felt really encouraged. I was like, Oh, my God, here’s pages and pages of people who aren’t immediately talking about how I’m a monster.”

She and Marschall shared the results of their poll with other advocates. They hoped it might hold sway with a coalition of advocates in Arizona who were thinking through a constitutional amendment to enshrine abortion rights, even though they were aware that the coalition would base its decisions on its own, state-specific data.

But in early August, when the state coalition, Arizona for Abortion Access­, filed a proposed amendment with the Secretary of State’s office, they included language to restrict access to abortions after the point of fetal viability, except for when needed to protect the health or life of the pregnant person. “Based upon the data that we received from our polling, the language with viability was the strongest option,” Planned Parenthood Advocates of Arizona senior advisor Chris Love told a Washington Post reporter. “That’s the option that we think most Arizona voters will go with.”  

The day after the announcement of the Arizona campaign, Indivisible published a memo gushing about how its own data indicated that the coalition’s measure would motivate pro-choice voters and dampen Republican turnout­­—”boosting Democratic candidates up and down the ticket in a state with numerous, must-win competitive races at the Presidential, Senate, House, and state legislative level.”

In a statement, the coalition says it “listened to Arizonans and designed a measure that provides meaningful protections for abortion that can win at the ballot box next November.” Disappointed by the language, Christensen and Marschall are resigned to keep working to lift viability limits in the long term, if not the short. “It’s so hard, because it’s too late,” Christensen says of the proposal in her state. “There’s nothing I can do to change it.”

In Missouri, the quest to enshrine more expansive abortion rights in the constitution faces a tough road ahead. A survey conducted by St. Louis University and YouGov in August 2022 found that just 48% of voters would support an amendment to overturn the state’s ban on abortions; 13% were unsure. A majority thought it should be legal to get an abortion in the first 8 weeks of pregnancy. But support fell drastically for legal abortion later in pregnancy.

When the Missouri coalition sat down to craft its own polling late last year, the discussion over what to ask voters grew tense. Merritt, the Medical Students for Choice director, saw it as a red flag that other organizers wanted to quiz voters on whether they’d support versions of an amendment with restrictions. In her mind, the group shouldn’t even consider language that contradicts doctors’ understanding of pregnancy and leaves out vulnerable community members. “I don’t care if the polling shows that parental notification and viability show the ballot winning with 90% of the vote,” she says.

“I’m asking medical schools to maintain abortion and family planning curriculum that is medically accurate, evidence based, patient centered—and we’ve got abortion-rights groups advancing viability?”

The coalition’s internal polling has not been made public. Yet drafts of the group’s proposed legislation, filed with the Missouri Secretary of State in March, hint at what it might have said. All 11 versions establish a right to “reproductive freedom”—the ability to make and carry out one’s own decisions about abortion, contraception, and healthcare throughout pregnancy. They also would set a very high legal bar for how the government can regulate abortion. But 10 of the 11 versions contain exceptions to that high bar. They would let the state require parental consent for minors seeking abortions (while allowing doctors to grant exceptions in certain cases); ban abortion after 24 weeks or viability (unless a patient’s health is endangered); and maintain an existing law forbidding Medicaid funding for abortion care.

The coalition is still deciding whether to proceed with the amendment campaign at all, much less which version to run. Their decisions are complicated by legal fights with state GOP officials over how the various proposed amendments would be described in the voting booth.“I’m asking medical schools to maintain abortion and family planning curriculum that is medically accurate, evidence based, patient centered—and we’ve got abortion-rights groups advancing viability?”

Schwarz, the leader of Abortion Action Missouri, says the decision about whether to proceed will depend on how those amendment descriptions perform in future public opinion polls. The Missouri electorate, she says, has been subject to “years of political indoctrination and racist and classist messaging” affecting their opinions on abortion rights. She sees a campaign for a constitutional amendment as a chance to educate more voters and permanently shift their thinking. Yet without strong polling now, among the current electorate, the campaign will struggle to secure the funding it needs to collect signatures and ultimately win the election. Tony Rothert, director of integrated advocacy for the ACLU of Missouri, puts it plainly: “There isn’t going to be $30 million for a campaign that does not have a chance of winning.”

Throughout this process, the Missouri coalition has been receiving advice and support from the Fairness Project, the national group behind a wave of successful ballot initiatives to expand Medicaid and raise the minimum wage. Recently, the group has begun throwing its weight behind abortion-rights measures, such as the successful Michigan amendment last year, which also allowed for a viability limit. “We’re in a moment where abortion-rights advocates nationally and in every state are trying to figure out how we deepen our understanding of where the electorate is,” says Fairness Project executive director Kelly Hall. Getting answers, she adds, requires “a deeper dive than just ‘Do you support abortion rights? Do you oppose extreme bans?’ Because there are a lot of nuances to both how policies can be crafted, and opposition messages.”

The inclusion of a viability line in proposed amendments is putting advocates beyond Missouri in a difficult position as well. Take an abortion-rights measure in Ohio, which voters will decide on in November, and which allows for a viability ban. ACOG, the national medical organization, says the amendment “is not completely in line” with its “policy of support for access to abortion without restrictions.” Yet members of the association’s Ohio chapter requested permission to endorse the initiative anyway, and the ACOG board of directors voted to allow it. In a statement, the association says the directors made their decision “to provide relief” for physicians and patients for whom the amendment would restore access.

“No one in ‘Big Repro’…none of them are coming out and saying, ‘This is bullshit. Why are we enshrining this?’”

Other national abortion-rights groups say they are following the lead of state-level advocates when it comes to which measures to support. “It is not always possible to achieve our entire vision in one step, but we strive to enact policies that will do the most good for the most people along the way,” says ACLU senior campaign strategist Carolyn Ehrlich. Standiford, of the Planned Parenthood Action Fund, says she knows that viability limits are “arbitrary.” Yet she considers ballot initiatives that include them “supportable” in places where viability is already enshrined in state law.

As the compromises continue, some abortion-rights advocates are fed up. “‘It’s ‘Big Repro’ who has spent the last 50 years saying, ‘Roe was the floor, Roe was not enough,’” says one abortion provider, who requested anonymity out of fear of losing connections in the movement. “Now that they have an opportunity to go beyond Roe, they’re not. No one in ‘Big Repro’—Planned Parenthood Federation of America, the Center for Reproductive Rights, the ACLU, NARAL Pro-Choice America, the National Abortion Federation—none of them are coming out and saying, ‘This is bullshit. Why are we enshrining this?’”

Merritt stepped back from the Missouri coalition after a period of intense reflection. She says she “dusted out Loretta Ross’s ‘Reproductive Justice 101’” and thought about what it meant to keep sitting at the ballot table as a Black woman widely respected in the movement. Ultimately, she decided: If the only proposal that could win was one that contained restrictions like parental consent and a viability line, it meant the time to try to pass an amendment wasn’t right. Not when the concessions would be written into the state constitution. “The answer to not having a win for bodily autonomy is not restrictions,” she concluded. “It has to be a reassessment of the timing of the ballot.”

McNicholas, at Planned Parenthood of St. Louis, isn’t ruling out supporting the amendment campaign going forward. Yet as she weighs the issues, she says she thinks often of the personal stories of vulnerable and marginalized patients she’s used to advocate against restrictions in the past. “I oftentimes think of how easy it is to share those stories of pain and devastation when we’re on the defense,” she says. “We cannot be a movement that has spent decades sharing those tragic impacts, only to turn around and compromise on those folks quickly, when we have an opportunity to do something bold and proactive.”

Over and over, pregnant people who qualify for exceptions under state bans have been unable to find doctors willing to provide them an abortion.

Robin Utz is one of the women whose story was deployed by advocates campaigning for abortion rights. After four years of trying to conceive, Utz finally became pregnant in Missouri in 2016, only to learn at 20 weeks and 6 days that her daughter had a fatal kidney disease that would prevent her lungs from developing. Knowing her daughter had no chance of survival, Utz got an abortion six days later, on the second-to-last possible day before Missouri’s viability cutoff. Afterwards, she shared her story online and introduced herself to local abortion-rights organizations. She spoke at their fundraisers; lobbied for bills they supported; and served as treasurer on a failed 2019 campaign to block the trigger ban state officials would ultimately enact within minutes of the fall of Roe v. Wade.

It’s possible that women like Utz, who know for sure their child won’t survive birth, would still be able to access an abortion under the type of limit being considered by the Missouri ballot coalition. It all comes down to doctors, who would be legally tasked with determining if a pregnancy was viable—and deciding how much of a risk to take for patients whose cases may not be so clear-cut. Over and over in the last year, pregnant people who qualify for exceptions under state bans have been unable to find doctors willing to provide them an abortion. As a result, patients as young as 13 have had no choice but to carry their pregnancies to term.

Utz is conflicted over whether she would vote for one of the compromise amendments currently on the table in Missouri. On one hand, she doesn’t want any abortion-rights initiative to fail. But she says she’s lost faith in the local groups that helped her become an activist, taught her about reproductive justice, and provided a sense of community after her own later abortion. “A lot of people that helped me see how loud we could be, how grand of a vision we could have, are now the same people pushing forward these terrible, incomplete things,” she says. “Some of those organizations are the ones pushing forward ballot initiative language now that cuts me out.”

© Mother Jones

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