Editorial: Can California afford to be a haven for abortion? It can’t afford not to be

BY THE LOS ANGELES TIMES EDITORIAL BOARD

MAY 26, 2022 3:12 PM PT

California has long been a safe harbor for reproductive rights. Abortion was legal here even before the 1973 Supreme Court decision in Roe vs. Wade made the right to have the procedure constitutionally protected in this country.

In the intervening half-century, California has guaranteed the right to an abortion through the second trimester — and later if the life of the pregnant person is endangered — without constraints. While other states were passing multiple restrictions on abortion, California Gov. Gavin Newsom signed a proclamation in 2019 inviting women to come to the state to “exercise their reproductive rights.”

Just hours after a Supreme Court draft decision overturning Roe was leaked, Newsom, Senate President Pro Tem Toni Atkins (D-San Diego) and Assembly Speaker Anthony Rendon (D-Lakewood) called for a state constitutional amendment on the November ballot enshrining the right to an abortion in California. Currently the state has a right to privacy that has been interpreted to cover a right to an abortion, and an amendment would explicitly provide a right to abortion in the state Constitution in case the right to privacy were ever challenged.

Now California is poised to become a sanctuary for women from the 26 states that are certain or very likely to ban abortion if Roe is overturned.

But the state’s capacity to take on this mission may be tested. The Guttmacher Institute, a research organization that supports abortion rights, estimates that California would be the place of the nearest provider for anywhere from 46,000 to 1.4 million people as other states impose abortion bans. Lawmakers must understand that many Californians have trouble accessing abortion services now. A surprising 40% of counties in the state have no clinics providing abortion and an influx of more people seeking abortions could make access even more difficult for California women. It would be cruel to encourage people needing abortions to come here and then turn them away from overbooked clinics when they got here.

It’s encouraging that Newsom and state legislative leaders have made it clear that they will work to make sure California is prepared to serve people seeking abortion from other states. Legislators are considering 13 bills that would expand abortion access and funding and protect pregnant people and abortion providers. All are based on recommendations from the California Future of Abortion Council, a group of reproductive rights organizations and experts brought together in the early fall with Newsom’s support.

Among the bills are two that would protect residents of states with laws making it illegal to get an abortion elsewhere. Assembly Bill 1666 protects patients and providers in California from civil actions for receiving or providing abortion care and Assembly Bill 2091 ensures that out-of-state subpoenas seeking information about a person who received abortion care in California are never granted.

A couple of bills would help subsidize abortion expenses for anyone who needs help. Senate Bill 1142 would set up the Abortion Practical Support Fund to give grants to nonprofits that help low-income pregnant people with support they need to get an abortion, such as airfare, lodging or gas money. Sen. Anna Caballero (D-Salinas), the bill’s author, says she and supporters are asking for one-time funding of $20 million (which is not specified in the bill). After that, they hope contributions from private individuals and philanthropic organizations will become the main source of money for this fund.

Assembly Bill 2134 sets up a program through which Medi-Cal-enrolled providers could apply for grants to provide contraception and abortion to people who are uninsured or have health plans that don’t provide this coverage. California — like 15 other states — uses its own funds to allow low-income people on Medi-Cal to get abortions.

Other proposals address the lack of abortion providers in the state. Senate Bill 1375 would allow nurse practitioners with a certain level of experience to perform abortions independently of a doctor. (Some nurse practitioners can already perform abortions under a doctor’s supervision.) The California Medical Assn. opposes the bill in its current form because it changes the requirements for what constitutes eligible experience. (The bill, which is supported by the California Board of Registered Nursing and the California Hospital Assn., requires three years of experience.) Assembly Bill 1918 would create a Reproductive Health Service Corps that would recruit and train a diverse workforce assigned to provide reproductive care in underserved areas.

We’re heartened by these urgent efforts to make California a place that protects the right to abortion for its residents and those who cross its borders to seek care. The governor already signed Senate Bill 245, which requires all state-licensed healthcare plans issued after 2022 to cover abortion without a co-payment or deductible. (The law makes California the fourth state to ban the fees.)

California lawmakers should continue to work on ways to accommodate all who need reproductive help. Though these bills could change over the next months as lawmakers refine them, the Legislature must ultimately solidify the state’s standing as a safe harbor and deploy the necessary resources to ensure that everyone who wants an abortion — resident or not — can get one. Ultimately, this is an investment in the protection of human rights.

Oklahoma Governor Signs Bill That Bans Most Abortions

The law prohibits abortion at the point of fertilization, and relies on civilian enforcement to sidestep Roe v. Wade.

By Luke Vander Ploeg and Kate Zernike,  New York Times

   Published May 25, 2022

   Updated May 26, 2022, 1:28 p.m. ET

Gov. Kevin Stitt of Oklahoma signed a bill on Wednesday that bans nearly all abortions starting at fertilization. The new law, which takes effect immediately, is the most restrictive abortion ban in the country.

The law makes exceptions in cases where an abortion is necessary to save the life of the mother, or in cases of rape or incest if they have been reported to law enforcement.

“From the moment life begins at conception is when we have a responsibility as human beings to do everything we can to protect that baby’s life and the life of the mother,” Mr. Stitt said after signing the bill into law. “If other states want to pass different laws, that is their right, but in Oklahoma we will always stand up for life.”

Passed by the Oklahoma Legislature last Thursday, the law relies on civilian enforcement to get around the constitutional right to abortion that was enshrined by the landmark Roe v. Wade decision.

State officials cannot bring charges. The law instead requires private citizens to sue abortion providers or anyone who “aids and abets” an abortion — which can include a friend who drives a woman to the clinic. Successful lawsuits in civil court yield at least $10,000 in damages.

Abortion providers had anticipated the governor’s signature but expressed fresh outrage.

“Oklahoma’s politicians, from the governor on down, are determined to strip rights from anyone who could become pregnant,” said Emily Wales, the president and chief executive of Planned Parenthood Great Plains. “Today, for the first time in nearly 50 years, abortion is illegal — at every stage of pregnancy — in an American state.”

Oklahoma has been at the head of a pack of Republican-led states passing laws banning abortion in anticipation that next month the Supreme Court is likely to overturn Roe. A draft opinion that was leaked this month in a case involving a Mississippi law that bans abortion after 15 weeks of pregnancy suggested that a majority of justices were prepared to sign on.

Already this year the governor has signed a ban on abortion that includes criminal penalties, and a six-week ban that relies on civilian enforcement.

The civil suit enforcement mechanism allows the law to sidestep court challenges that have blocked abortion bans in the past. The Oklahoma bans are modeled after a Texas law that allows individuals to sue abortion providers who offer the procedure after cardiac fetal activity is detected, about six weeks into pregnancy. The Supreme Court declined to block the enforcement of that law.

Wendi Stearman, the sponsor of the bill in the Oklahoma House, posted a picture of a newborn baby on Twitter to celebrate the governor’s signing of the law. “The success of this bill is a direct result of the people of Oklahoma letting their representatives know that the citizens of Oklahoma value LIFE,” she wrote. “Keep it up, Oklahoma!”

The bill passed overwhelmingly in the Oklahoma House with a vote of 73 to 16, after its proponents, who believe that abortion is murder, spoke in its favor.

“There can be nothing higher or more critical than the defense of innocent, unborn life,” State Representative Jim Olsen, a Republican, said on the House floor at the time.

Abortion providers have warned that the bans in Oklahoma will stress the entire region; after the ban in Texas, many women seeking abortions flooded across the border between the states.

“We are seeing the beginning of a domino effect that will spread across the entire South and Midwest if Roe falls,” said Nancy Northup, president and chief executive of the Center for Reproductive Rights. “Right now, patients in Oklahoma are being thrown into a state of chaos and fear. That chaos will only intensify as surrounding states cut off access as well.”

Planned Parenthood noted that the day after the six-week ban took effect in Oklahoma, the Tulsa Women’s Reproductive Clinic was forced to cancel 35 appointments and send home 10 patients because the pregnancies were too advanced for the clinic to address without breaking the law’s gestational limits.

Andrea Gallegos, the executive administrator at the Tulsa Women’s Clinic, said that it had canceled its abortion appointments for this week in anticipation of the governor’s signature of the new bill. The clinic is working with the Center for Reproductive Rights to file a lawsuit to overturn the ban, but she does not expect the clinic to last long under the current ban.

“Abortions are what we do,” Ms. Gallegos said. “We don’t provide any other type of services.”

In a statement after the bill was passed, Trust Women, an abortion provider, vowed that its clinics in Oklahoma City and Wichita, Kan., would remain open to help pregnant women find services in places “wherever abortions remain legal.” The group called the bill a “gratuitous and cruel flaunting of power by anti-abortion legislators.”

Luke Vander Ploeg is a senior producer on “The Daily” and a reporter for the National Desk covering the Midwest. @LukeVanderPloeg

Kate Zernike is a political reporter. She came to The Times from The Boston Globe in 2000. She was a member of the team that shared the 2002 Pulitzer Prize for explanatory reporting for a series of stories about Al Qaeda and the 9/11 attacks. @kzernike

   A version of this article appears in print on May 26, 2022, Section A, Page 18 of the New York edition with the headline: Tightest Ban On Abortions Becomes Law In Oklahoma. Order Reprints | Today’s Paper | Subscribe

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Where Abortion Legislation Stands Across the U.S.

Several states are imposing new restrictions on abortion, while others are reinforcing their ability to provide the procedure. Here is a look at some recent developments:

Restricting Abortion

·        Oklahoma: Gov. Kevin Stitt signed a bill that bans nearly all abortions starting at fertilization. The new law, which takes effect immediately, is the most restrictive abortion ban in the country.

·        Florida: In March, Gov. Ron DeSantis signed into law a ban on most abortions after 15 weeks of pregnancy. It takes effect on July 1.

·        Idaho: A ban on abortion after six weeks of pregnancy was set to take effect on April 22 but has been temporarily blocked by the Idaho Supreme Court.

·        Kentucky: Lawmakers overrode the governor’s veto of a law restricting abortion after 15 weeks. A federal judge temporarily blocked the measure.

Reinforcing Abortion

·        California: Abortion rights are already protected in the State Constitution, but lawmakers proposed an amendment to bolster those protections. A package of bills also seeks to make the state a “refuge” for women seeking abortions.

·        Connecticut: A new law would shield abortion providers and patients from lawsuits initiated by states that have banned or plan to ban abortion.

·        New York: Several bills have been introduced to strengthen abortion rights, including one that would create an abortion access fund.

·        Maryland: Overriding the governor’s veto, lawmakers passed a bill that allows trained medical professionals other than physicians to perform abortions.

California said it would be a ‘sanctuary’ for reproductive rights. It just took a big first step.

Earlier this month, AG Robert Bonta issued the state’s first legal alert, which took up the issue of miscarriage and stillbirths

Anne Branigin

January 14, 2022

This story has been updated.

It was the first legal alert announced by the California Department of Justice — and the first guidance of its kind in the nation.

On Jan. 6, Robert Bonta, the state’s attorney general, announced that a person carrying a fetus cannot be charged with murder for miscarriage or stillbirths.

The legal alert, meant to clarify the California DOJ’s view on “select questions of law,” Bonta said, was issued to all district attorneys, police chiefs and sheriffs and clarified that a state law on fetal murder only applies to third parties and cannot be used against a pregnant person whose fetus dies.

Pregnancy loss, even in instances where a person’s actions may have contributed to the death of the fetus or embryo, “should be met with an outreached hand, not handcuffs and murder charges,” said the state’s top prosecutor.

The announcement relates directly to two recent cases out of Kings County, Calif., where in the past four years the district attorney’s office has charged two women with murder for using methamphetamines during pregnancy, arguing that their drug use led to the stillbirths.

California’s fetal homicide law only applies to third parties, said Bonta, and states a clear exception to any act “solicited, aided, abetted or consented to by the mother of the fetus.”

The law’s architect, a Republican state assemblyman, said in a 1992 sworn affidavit that lawmakers did not intend “to make punishable as murder conduct by a pregnant woman that resulted in the death of her fetus."

While the legal guidance applied to a specific statute of California law, Bonta told The Lily, “We need to be absolutely clear-eyed about the moment that we’re in now, nationally.”

“We are committed to providing the strongest protections to individuals in California for reproductive freedom and access to reproductive care,” California’s top prosecutor said. “Preventing misuse of murder statutes to penalize pregnancy loss ... is one important step in that effort.”

This past December, California lawmakers laid out a proposal that would make the state a sanctuary for “reproductive freedom,” including the right to seek an abortion. Among the ideas put forward was to fund abortions for low-income individuals coming from out of state to end their pregnancies.

Antiabortion activists have strongly criticized the plan. “A ‘sanctuary’ where children are taken to be killed,” Lila Rose, the California-based president of the antiabortion group Live Action, wrote on Twitter. “More like a slaughter house than a sanctuary.”

The announcement came amid increasing uncertainty about the future of Roe v. Wade, which guarantees the constitutional right to an abortion. The landmark case is facing its strongest legal challenge in decades with Mississippi’s 15-week abortion ban. Mississippi has explicitly asked that its case, Dobbs v. Jackson Women’s Health Organization, be used to overturn Roe.

A number of states, including Arkansas, Idaho, North Dakota and Texas, have instituted trigger laws that would automatically ban abortion in the first and second trimesters if Roe falls. The Guttmacher Institute estimates that 26 states — more than half the country — are “certain or likely” to ban abortion in such a scenario. If that happens, more people will flock to states like California to end their pregnancies, according to the Guttmacher Institute, which supports abortion rights.

At a time when states are moving further apart on abortion access, abortion rights advocates say prosecutions like those in Kings County are an increasing point of concern, in part because they could be applied to cases in which the pregnant person seeks an abortion.

Bonta’s announcement is an important step in making sure that no one is punished for the outcome of their pregnancy, whether they intended to end it or not, said Lynn Paltrow, founder and executive director of the National Advocates for Pregnant Women (NAPW), whose attorneys have represented the defendants in the Kings County cases.

In this environment, any criminalization of adverse pregnancy outcomes, including miscarriages and stillbirths, is a threat to reproductive rights, she said.

Bonta’s announcement, while addressing one specific California statue, is “very broad in terms of its message,” said Paltrow: “Pregnancy and pregnancy outcomes should not be addressed with the criminal law system.”

Kings County Executive Assistant District Attorney Philip Esbenshade told the Associated Press that the cases are not “in any way” about abortion or reproductive rights. (The office did not respond to an additional request for comment.)

Reproductive rights advocates have long been concerned about laws criminalizing pregnancy loss.

Samantha Lee, a staff attorney at NAPW, said criminal charges because of adverse pregnancy outcomes are rooted in a “longtime stigma associated with miscarriage.”

Lee represented Chelsea Becker, who was charged by the Kings County district attorney in 2019 with murder after giving birth to a stillborn baby. Kings County District Attorney Keith Fagundes argued that toxic levels of methamphetamines caused the death of the fetus. Becker spent more than a year in jail because of a $2 million bail, which was set to prevent “the prospect of [Ms. Becker] becoming impregnated” again.

Becker’s murder charge was dropped in May 2021, after a judge found that prosecutors had not presented sufficient evidence that Becker took drugs knowing it could kill her baby.

The charges Becker faced are “based on the idea that we can guarantee a healthy pregnancy. If your pregnancy isn’t healthy, that’s somehow your failure,” argued Lee. “That’s simply not true.”

Some medical studies have shown links between drug use, including of methamphetamines, and adverse pregnancy outcomes, including pregnancy loss. The American College of Obstetricians and Gynecologists (ACOG) as well as the Centers for Disease Control and Prevention say pregnant people should not use tobacco, alcohol, marijuana, illegal drugs or prescription medications for nonmedical reasons.

The Kaiser Family Foundation noted in a recent policy brief that, “more often than not, the cause of a pregnancy loss is unknown even after thorough evaluation.”

“Most stillbirths are caused by genetic abnormalities, problems with the placenta, fetal growth restriction or infection,” stated the report.

And while some substance abuse can be a risk factor for pregnancy loss, the reports adds, “risk factors do not cause pregnancy loss, thus a pregnant person with one or more of these risk factors should not be faulted for their pregnancy loss.”

ACOG also discourages providers from reporting pregnant people with substance abuse disorders: “The use of the legal system to address perinatal alcohol and substance abuse is inappropriate,” its guidance reads.

Most of the cases criminalizing a pregnancy outcome involve some form of drug and alcohol use, said Paltrow, but they aren’t the only ones. In 2010, an Iowa prosecutor brought attempted feticide charges against a woman who fell down a flight of stairs after an upsetting call with her estranged husband. In Utah, a woman was charged with murdering one of her near-term twins after refusing a Caesarean section.

Reproductive justice advocates often point out the racial disparities in pregnancy loss: In Mississippi, for example, Black women were found to be twice as likely as White women to deliver a stillbirth. NAPW notes that the vast majority of charges based on one’s pregnancy are brought against poor women and women of color.

Farah Diaz-Tello, senior counsel and legal director for the advocacy group If/When/How: Lawyering for Reproductive Justice, said the people who are charged with crimes against their pregnancies reflect “the population that is already over-policed and over-surveilled.”

“They are also the least likely to be able to access resources they would need to defend themselves,” she said. “And, perversely, more likely to experience adverse pregnancy outcomes because of the marginalization they’re experiencing.”

As abortion restrictions get more acute around the country, Lee thinks more people have started paying attention to these laws.

She noted that there is no real way to differentiate between self-managed abortion — when people terminate their pregnancies outside of a formal clinic settings — and miscarriages or stillbirths.

Paltrow pointed out that most of NAPW’s cases involve women who delivered healthy babies but were still criminalized for their conduct during and after pregnancy.

“If you can lock somebody up for having given birth to a healthy baby,” she said, “what do people think is going to happen when Roe v. Wade is overturned?”

Marjorie Dannenfelser, president of the antiabortion group Susan B. Anthony List, said in a recent interview with the New Yorker that she is against punishing women for seeking or getting abortions.

If abortion is deemed illegal, said Dannenfelser, “my view, and the view of the entire movement — without any exception that I’m aware of — is that the doctor, the one who has been planning to break the law, is the guilty party. The law is enforced against that person, not the woman.”

But some conservative lawmakers do not appear to share this belief. Last year, Texas state Rep. Bryan Slaton (R) filed legislation aimed at people who get abortions, along with their medical providers. If found guilty of ending their pregnancies, they could get the death penalty.

“It’s time Republicans make it clear that we actually think abortion is murder,” he said, according to the Texas Tribune.

But, Slaton also said, he did not think his bill would “put a single person in jail.”

“All my bill does,” he said, “is say that an unborn child is the same as a born child and should be treated the same by the laws.”

Texas lawmakers did not advance Slaton’s bill last year.

Michele B. Goodwin, a Chancellor’s Professor at the University of California at Irvine and author of “Policing the Womb: Invisible Women and the Criminalization of Motherhood,” applauded California’s recent guidance.

“It is terrific that there is an effort to move away from toxic criminalization of people who are pregnant, for their behavior or conduct during their pregnancies,” she said. “This kind of intervention is long overdue.”

Goodwin has tracked cases like those in Kings County for 20 years. These prosecutions are rooted in the idea that embryos and fetuses have a right to personhood, she said.

These kinds of cases took off in the 1980s and ’90s during the crack epidemic, she added, when the media and others fueled panic that women using crack cocaine were giving birth to babies addicted to crack (these claims, primarily targeting Black women, were later determined to be unfounded).

“Personhood” — or a fetus’s right to life — also undergirds other laws that overrule the pregnant person’s autonomy, said Goodwin. She listed pregnancy exclusions laws as one such example, which require doctors to ignore the wishes of pregnant people who wish to end life-sustaining care, so that they might bring their pregnancies to term. As of 2020, 35 states had such laws.

“It would be a mistake to see [controlling the lives of pregnant people] as only within the realm of abortion,” said Goodwin.

Bonta said he hopes that other states will follow California’s lead.

The attorney general said he “would be shocked if there weren’t numerous other states that have similar statutes to ours in California, where the actual conduct of the mother cannot lead to a charge of murder.”

“Where that’s true, I think they should declare it and join us,” he said.

As for his state, Bonta vowed: “We’ll see a lot more from California in this regard.”

Source:  https://www.thelily.com/california-said-it-would-be-a-sanctuary-for-reproductive-rights-it-just-took-a-big-first-step/

California plans to be abortion sanctuary if Roe overturned

ADAM BEAM

Wed, December 8, 2021, 9:03 AM

SACRAMENTO, Calif. (AP) — With more than two dozen states poised to ban abortion if the U.S. Supreme Court gives them the OK next year, California clinics and their allies in the state Legislature on Wednesday revealed a plan to make the state a “sanctuary" for those seeking reproductive care, including possibly paying for travel, lodging and procedures for people from other states.

The California Future of Abortion Council, made up of more than 40 abortion providers and advocacy groups, released a list of 45 recommendations for the state to consider if the high court overturns Roe v. Wade — the 48-year-old decision that forbids states from outlawing abortion.

The recommendations are not just a liberal fantasy. Some of the state's most important policymakers helped write them, including Toni Atkins, the San Diego Democrat who leads the state Senate and attended multiple meetings. 

Democratic Gov. Gavin Newsom started the group himself and in an interview last week with The Associated Press said some of the report's details will be included in his budget proposal in January.

“We'll be a sanctuary,” Newsom said, adding he's aware patients will likely travel to California from other states to seek abortions. “We are looking at ways to support that inevitability and looking at ways to expand our protections.”

Abortion, perhaps more than any other issue, has divided the country for decades along mostly traditional partisan lines. A new decision overturning Roe v. Wade, which could come next summer, would be the culmination of more than 40 years of conservative activism. But Wednesday's report offers a first glimpse of how Democratic-dominated states could respond and how the debate over abortion access would change.

California already pays for abortions for many low-income residents through the state's Medicaid program. And California is one of six states that require private insurance companies to cover abortions, although many patients still end up paying deductibles and co-payments.

But money won't be a problem for state-funded abortion services for patients from other states. California's coffers have soared throughout the pandemic, fueling a record budget surplus this year. Next year, the state's independent Legislative Analyst's Office predicts California will have a surplus of about $31 billion.

California's affiliates of Planned Parenthood, the nation's largest abortion provider, got a sneak preview of how people might seek abortions outside their home states this year when a Texas law that outlawed abortion after six weeks of pregnancy was allowed to take effect. California clinics reported a slight increase in patients from Texas. 

Now, California abortion providers are asking California to make it easier for those people to get to the state. 

The report recommends funding — including public spending — to support patients seeking abortion for travel expenses such as gas, lodging, transportation and child care. It asks lawmakers to reimburse abortion providers for services to those who can’t afford to pay — including those who travel to California from other states whose income is low enough that they would qualify for state-funded abortions under Medicaid if they lived there.

It's unclear about how many people would come to California for abortions if Roe v. Wade is overturned. California does not collect or report abortion statistics. The Guttmacher Institute, a research group that supports abortion rights, said 132,680 abortions were performed in California in 2017, or about 15% of all abortions nationally. That number includes people from out of state as well as teenagers, who are not required to have their parents' permission for an abortion in California.

Planned Parenthood, which accounts for about half of California's abortion clinics, said it served 7,000 people from other states last year.

A huge influx of people from other states “will definitely destabilize the abortion provider network,” said Fabiola Carrion, interim director for reproductive and sexual health at the national Health Law Program. She said out-of-state abortions would also likely be later term procedures, which are more complicated and expensive.

The report asks lawmakers to help clinics increase their workforce to prepare for more patients by giving scholarships to medical students who pledge to offer abortion services in rural areas, help them pay off their student loans and assist with their monthly liability insurance premiums. 

“We’re looking at how to build capacity and build workforce,” said Jodi Hicks, CEO of Planned Parenthood Affiliates of California. “It will take a partnership and investment with the state.”

Abortion opponents in California, meanwhile, are also preparing for a potential surge of patients from other states seeking the procedure — only they hope to convince them not to do it.

Jonathan Keller, president and CEO of the California Family Council, said California has about 160 pregnancy resource centers whose aim is to convince women not to get abortions. He said about half of those centers are medical clinics, while the rest are faith-based counseling centers.

Many of the centers are located near abortion clinics in an attempt to entice people to seek their counseling before opting to end pregnancies. Keller said many are already planning on increasing their staffing if California gets an increase of patients.

“Even if we are not facing any immediate legislative opportunities or legislative victories, it’s a reminder that the work of changing hearts and minds and also providing real support and resources to women facing unplanned pregnancies — that work will always continue,” Keller said. 

He added: “In many ways, that work is going to be even more important, both in light of the Supreme Court's decision and in light of whatever Sacramento decides they are going to do in response.” 

The End of Roe Is Coming, and It Is Coming Soon

Dec. 1, 2021, New York Times, Guest Opinion

By Mary Ziegler

Ms. Ziegler is the author of “Abortion and the Law in America: Roe v. Wade to the Present.”

***

As someone who has spent my career studying the history of abortion, I thought I knew what to expect tuning into Wednesday’s oral arguments in the Supreme Court abortion case, Dobbs v. Jackson Women’s Health Organization. It was clear that big changes were coming to U.S. abortion law, no matter what. The Mississippi law at issue bans abortion after 15 weeks of pregnancy, even though Roe v. Wade and Planned Parenthood v. Casey recognize a right to choose abortion significantly later in pregnancy. So if the court sides with Mississippi in this case — as it is widely expected to do — then American abortion rights will be fundamentally undermined.

The only real question is how the justices will rationalize their decision to side with Mississippi. And on that front, I fear I was wrong.

There are two likely scenarios for how this decision could go: The justices could throw out the so-called viability standard, which is the underpinning of abortion law today. (Viability is the point at which a fetus can survive outside the womb, or about 23 weeks of pregnancy.) Or they could do something much more radical and say — precedent be damned — there is no right to abortion in America at all.

After hearing arguments, I now believe that the justices will fully overturn Roe v. Wade when their decision comes down next year.

Until this morning, I thought that the second path was too treacherous for a Supreme Court with plummeting poll numbers. Many Americans believe that the Supreme Court, an institution that relies on respect and soft power for its legitimacy, is a partisan institution. Meanwhile, 2022 is an election year. And much of the confirmation hearings for Justices Amy Coney Barrett and Brett Kavanaugh turned on their respect for precedent.

I believed that the court would eventually overturn Roe — several of the justices were handpicked by former President Donald Trump to do just that — but before the Dobbs arguments, I didn’t think they would do it so quickly. I thought that the justices would give themselves time to soften the blow, to make their case to the American people while overhauling abortion rights and to defuse arguments that the justices are just partisans in robes.

What I heard Wednesday morning was not a court in which a majority was worried about backlash, but a court ready for revolutionary change. (The justice who expressed the most concern about backlash was Sonia Sotomayor, the court’s most vocal proponent of abortion rights, who seemed ready to write a barn-burning dissent.)

That’s not to say that the conservatives on the court will necessarily be unanimous. Chief Justice John Roberts did seem like he might want to avoid reversing Roe outright. And Justice Barrett’s position was not always easy to gauge — she may be the conservative vote most up for grabs. But for much of the arguments, Justice Barrett did seem to ready to reverse Roe. For instance, she repeatedly suggested that pregnant people had no need for abortion because they could simply put their children up for adoption.

It was Justice Kavanaugh’s comments that alarmed me the most on Wednesday. He appears to have bought into the idea that the Constitution is neutral on abortion, the suggestion being that doing so would be both better for the court’s legitimacy and be the only principled interpretation of the Constitution. “This court should be scrupulously neutral on the question of abortion, neither pro-choice nor pro-life,” he said. The court once described fairness in the abortion debate as striking a balance between the state’s interest in protecting fetal life and pregnant people’s interest in autonomy and equality. Now, Justice Kavanaugh seemed to suggest on Wednesday, fairness means reversing Roe.

The rest of the justices behaved more or less as I expected. Justice Clarence Thomas asked questions that assumed the state had the power to punish women for their behavior during pregnancy. Justice Neil Gorsuch repeatedly suggested that there was no way for Mississippi to win unless Roe was gone. Justice Samuel Alito suggested that at the time the 14th Amendment was adopted, most states did not treat abortion as a protected right — meaning, he seemed to argue, that the right to abortion was not rooted in early American history.

There was no mistaking the message of Wednesday’s arguments: There will be a day when there is no longer a right to choose abortion in the United States, and it is coming soon.

I Was Raped by My Father. An Abortion Saved My Life.

Nov. 30, 2021, New York Times

By Michele Goodwin

On Wednesday, the Supreme Court will hear oral arguments on the constitutionality of a 15-week abortion ban in Mississippi that provides no exceptions in cases of rape or incest. What’s at stake in this case matters to the countless girls and women who have been raped — including those who, like me, were raped by a father, an uncle or another family member.

It was the early morning of my 10th birthday the first time that I was raped by my father. It would not be the last. The shock was so severe that I temporarily went blind before I began the fifth grade a few weeks later. By the time the school year began, my father had taken me to see a battery of doctors — a medical explanation would paper over the fact that the trauma caused by his sexual violence had caused my body to shut down.

The physiological suffering that I endured included severe migraines, hair loss and even gray hair — at 10 years old. While other girls may have longed for puberty, I loathed the idea of it. My body became a vessel that was not mine. It had been taken from me. I lived in fear of the night, and the footsteps outside my bedroom door.

I gravitated to closets — I would find the deepest corner, sit with a flashlight, read and rock myself. Only years later, while in therapy at 16, would I understand that my involuntary rocking when relating to these experiences was the manifestation of my stress and anxiety.

My father’s predations were hidden behind wealth, social status and his acting the part of a committed and attentive parent. I attended elite schools in New York City, studied ballet at a renowned academy and took private violin and tennis lessons. My father never missed a parent-teacher conference. However, that veneer of normalcy belied intimate family violence that began years before with his physical abuse of my mother. At times he was so violent that she was hospitalized.

At age 12, I was pregnant by my father, and I had an abortion. Before we got to the doctor’s office, I had no idea that I was pregnant. My father lied about my age and the circumstance of my pregnancy, informing the doctor that I was 15 and that I had been reckless with a boyfriend. My father shook his head, explaining to the doctor that he was doing all that he could as a single parent — my parents had divorced by this time — but that I was out of control. Both men seemed to convey contempt toward me. For many years, the shame of my father’s lie lingered with me — the stereotype embedded in the narrative of the risky, hypersexualized Black girl.

My shame was never about the abortion. I will forever be grateful that my pregnancy was terminated. I am fortunate that my body was spared an additional trauma imposed by my father — one that today would be forced by some state legislatures and courts. No child should be pressured or expected to carry a pregnancy and give birth or to feel remorse, guilt, doubt or unease about an abortion under any circumstances, let alone rape or incest.

As Justice Harry Blackmun recognized in his majority opinion in Roe v. Wade in 1973, the barriers to a decent life are enormous when there is an unwanted pregnancy; for many, they are insurmountable.

In the end, my way out was to leave the economic security of home at age 15. That, too, is a decision that I will never regret. But it was not easy. When I left, I had $10 and no access to the savings account my father held for me. I enrolled myself in a public school on Staten Island. To support myself, I cleaned the house of a very kind couple. I lived in an unfinished attic and survived on a modest diet that mostly consisted of beans, rice and cans of tuna. To win my freedom from my parents, I went to court, where I endured interrogation from ill-prepared and insensitive lawyers about being raped as a child.

As a survivor of childhood rape and pregnancy — and today a law professor who teaches constitutional law and bioethics — I recognize the grave dangers of the current crop of abortion bans.

In Texas, the right to an abortion is virtually meaningless under Senate Bill 8, which bans most abortions after about six weeks of pregnancy, when many people will not know they are pregnant. Like the Mississippi ban, it provides no exceptions for rape or incest.

Given the importance of the Supreme Court’s deliberations this week and the naïve bravado of Gov. Greg Abbott of Texas suggesting that rape will disappear in his state with a tough-on-crime approach, I felt compelled to speak out.

The governor imagines that he can “eliminate all rapists from the streets of Texas,” but like many abusers, my father was respected in the community, a successful businessman who was adored by family, friends and colleagues. I, on the other hand, felt alone and in fear. I was not only sexually abused but physically harmed as well. I was threatened to keep quiet and told by my father to “grit your teeth and bear it.”

Nobody ever wants to write about such experiences, exposing intimate aspects of one’s life, revisiting traumatic aspects of childhood. That is probably a big reason survivors of incest do not come forward. Even as our society becomes more enlightened about sexual assaults and abuse, often survivors pay a cost. While in college, a prominent professor warned me to never speak or write of my experiences. He believed that I had a bright future and that I could be personally and professionally harmed by sharing my story.

Yet the lack of compassion and the hubris that underlie the Mississippi and Texas legislation deserve a response.

With those laws, the state has in effect forced girls to carry the burden of its desires, forcing many of them to risk their health — and even risk death — by remaining pregnant. Like a military draft, the state has coercively conscripted rape and incest survivors to endure one more tremendous burden. To take another devastating physical and mental hit. To tie their lives to those of their rapists. This time it is state lawmakers who strong-arm their bodies into service.

This draft — the pregnancy draft — is warfare at home, and the state leaves its girls on the battlefield to fend for themselves. Rather than provide aid and care, states often punish girls who have run away from home after experiencing sexual violence. More than 80 percent of the girls in juvenile justice systems in some states are victims of sexual or physical violence. For so many of these girls, their pipelines are not from youth to college and graduate school but to juvenile detention and possibly prison. Their lives are treated as expendable and not worth saving.

Abortion bans represent more than isolated state lawmaking or states’ rights — they represent an attack on the fundamental principles of liberty, freedom and autonomy. As Justice Blackmun noted in a 1986 majority opinion that reaffirmed Roe, “few decisions are more personal and intimate, more properly private or more basic to individual dignity and autonomy” than the decision to terminate a pregnancy. Abortion bans that provide no exceptions for rape and incest are a particularly cruel and immoral type of lawmaking.

For these reasons, this is a pivotal moment for the Supreme Court to issue a corrective and show that here, too, the arc of the moral universe may be long, but as foretold by the Rev. Dr. Martin Luther King Jr., it bends toward justice — and that includes the protection of girls.

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Ms. Goodwin is a professor of law at the University of California, Irvine, and the founding director of the U.C.I. Law Center for Biotechnology and Global Health Policy and its Reproductive Justice Initiative.