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Look Up! Roe Is the Floor, Not the Ceiling
https://www.thenation.com/article/activism/abortion-ballot-initiatives-viability/Roe had hinged on a dividing line that even its author, Justice Harry Blackmun, acknowledged was arbitrary. Feeling a need to allow states to ban abortion at some point in pregnancy, Blackmun considered the end of the first trimester before settling on “viability,” when, he wrote, a fetus “presumably has the capability of meaningful life outside the mother’s womb.” After viability, the Roe decision said, the state had a “compelling” interest in fetal life and could enact restrictions on abortion to that end.
This framework downgraded the rights of a pregnant person after fetal viability, ignoring the reasons someone might seek an abortion later in pregnancy. A recent study by Katrina Kimport found that there are two main reasons for abortions after 24 weeks—new information, such as a serious fetal health diagnosis, or barriers to abortion earlier in pregnancy, such as cost and finding a provider. These barriers have only grown since Dobbs and were already highest for low-income people of color. “You don’t get an abortion later in pregnancy unless something really bad has happened,” said Dr. Diane Horvath, a cofounder of Partners in Abortion Care, one of three clinics in the country that routinely provide care after 28 weeks. In the months since Dobbs, Republicans have doubled down on their claim that Democrats want to permit “abortion up until birth,” painting their opponents as extremists in spite of the fact that the Republicans are responsible for overturning a 50-year-old constitutional right. But “this idea that people carelessly have abortions later in pregnancy—it’s a false narrative, and it’s a really deliberate attempt to vilify people who need abortions later in pregnancy and the people who provide them,” Horvath said. “These decisions are never better made by legislators or by voters than they are by pregnant people working with their health care providers.”
(snip)
But the architects of the most promising and well-funded efforts to save abortion access in states where abortion is banned, restricted, or under threat are pushing measures that use Roe’s viability framework. In five of these states—Arizona, Florida, Missouri, Ohio, and South Dakota—citizens have proposed ballot measures to restore or protect abortion access in 2023 or 2024. Four of the current versions of these proposals would enshrine a state’s right to ban abortion after viability or, in South Dakota’s case, at the end of the second trimester. In the fifth state, Missouri, where there’s a legal battle over the inflammatory ballot language proposed by the Republican secretary of state, the ballot language has not been finalized, but advocates are entertaining versions that would allow the Legislature to ban abortion after viability or 24 weeks. Proponents of these compromises told me they see them as a form of harm reduction. In states like Missouri and South Dakota, where abortion is banned, and Arizona and Florida, where 15-week bans are in effect, advocates feel an urgency to restore the status quo under Roe.
(snip)
But many providers and reproductive justice activists have grown frustrated with this defensive approach. With ballot measures offering the greatest hope of restoring abortion access in many red states, they worry that the movement is repeating the mistakes of the past rather than prioritizing those most affected by abortion restrictions. “When we, as a movement, were on the defense, it was easy to say that abortion bans are bad and abortion bans disproportionately affect the most marginalized,” McNicholas told me. “When we are now in a position to take the offense…where we have an opportunity to rebuild with our values at the center…our own internalized stigma is still showing its face.”
This framework downgraded the rights of a pregnant person after fetal viability, ignoring the reasons someone might seek an abortion later in pregnancy. A recent study by Katrina Kimport found that there are two main reasons for abortions after 24 weeks—new information, such as a serious fetal health diagnosis, or barriers to abortion earlier in pregnancy, such as cost and finding a provider. These barriers have only grown since Dobbs and were already highest for low-income people of color. “You don’t get an abortion later in pregnancy unless something really bad has happened,” said Dr. Diane Horvath, a cofounder of Partners in Abortion Care, one of three clinics in the country that routinely provide care after 28 weeks. In the months since Dobbs, Republicans have doubled down on their claim that Democrats want to permit “abortion up until birth,” painting their opponents as extremists in spite of the fact that the Republicans are responsible for overturning a 50-year-old constitutional right. But “this idea that people carelessly have abortions later in pregnancy—it’s a false narrative, and it’s a really deliberate attempt to vilify people who need abortions later in pregnancy and the people who provide them,” Horvath said. “These decisions are never better made by legislators or by voters than they are by pregnant people working with their health care providers.”
(snip)
But the architects of the most promising and well-funded efforts to save abortion access in states where abortion is banned, restricted, or under threat are pushing measures that use Roe’s viability framework. In five of these states—Arizona, Florida, Missouri, Ohio, and South Dakota—citizens have proposed ballot measures to restore or protect abortion access in 2023 or 2024. Four of the current versions of these proposals would enshrine a state’s right to ban abortion after viability or, in South Dakota’s case, at the end of the second trimester. In the fifth state, Missouri, where there’s a legal battle over the inflammatory ballot language proposed by the Republican secretary of state, the ballot language has not been finalized, but advocates are entertaining versions that would allow the Legislature to ban abortion after viability or 24 weeks. Proponents of these compromises told me they see them as a form of harm reduction. In states like Missouri and South Dakota, where abortion is banned, and Arizona and Florida, where 15-week bans are in effect, advocates feel an urgency to restore the status quo under Roe.
(snip)
But many providers and reproductive justice activists have grown frustrated with this defensive approach. With ballot measures offering the greatest hope of restoring abortion access in many red states, they worry that the movement is repeating the mistakes of the past rather than prioritizing those most affected by abortion restrictions. “When we, as a movement, were on the defense, it was easy to say that abortion bans are bad and abortion bans disproportionately affect the most marginalized,” McNicholas told me. “When we are now in a position to take the offense…where we have an opportunity to rebuild with our values at the center…our own internalized stigma is still showing its face.”
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