We must defend elective abortions, and not just the most politically palatable cases | Moira Donegan
A Kentucky woman recently known by the pseudonym Mary Poe has filed a lawsuit against her, seeking an abortion for what was once a banal reason: because she wanted one.
Poe, who was about seven weeks pregnant at the time the lawsuit was filed, has since had an abortion is outside. But her lawyers argue she can still file suit to have the case overturned Kentucky’s two abortion bans – a six-week ban and a separate total ban – arguing that the laws violate the state constitution. This is at least typical: Since Dobbs, lawsuits challenging the abortion ban have emerged across the country, with women and their families seeking to overturn the ban, expand the exceptions, or obtain some compensation from the state for the serious, disturbing, disabling or fatal consequences that the bans have caused them to suffer.
The U.S. Supreme Court justices who voted to overturn Roe in Dobbs cited the increase in activist lawsuits around abortion – a product of conservative investments in anti-choice legal outlets – as part of their reason for doing so. Surely this must be a contentious, contentious issue that the federal court is ill-equipped to resolve, the conservative legal movement justices reasoned—because look how many complaints the conservative legal movement has filed against it!
This reasoning was always disingenuous, but it has also proven to be downright false: Dobbs has not taken the courts out of the abortion business. Instead, abortion lawsuits have exploded. The anti-choice camp has stepped up and tried to further restrict abortion by banning pills; targeting reproductive rights advocates, abortion funds, and sexual health educators; claiming rights for fetuses or embryos; or by claiming that men who father a pregnancy have the right to prevent women from terminating it.
But the pro-abortion rights side has also been busy with lawsuits. Women who are at great health risk or suffer terrible, painful complications as a result of bans class action lawsuit in Texas. Forbidden have been challenged time and time again – on the grounds of religious liberty, on the grounds of state constitutional provisions guaranteeing the right to make individual health care decisions, on the grounds of a federal law guaranteeing emergency room treatment for patients in need of stabilizing care, and under state constitutional clauses guaranteeing freedom, due to process and privacy.
The Kentucky lawsuit is part of the latter camp. Mary Poe has cited Kentucky’s constitutional guarantees of individual rights to both privacy and self-determination, which she says have been violated by the bans. “I feel overwhelmed and frustrated that I don’t have access to abortion care here in my home state,” she said a statement delivered through her lawyers to the American Civil Liberties Union. “I am raising this matter to ensure that other Kentuckians do not have to go through what I am going through and can instead get the health care they need in our community.”
This kind of desire for abortion—its dignified simplicity—is missing from much of the post-Dobbs abortion rights discourse. After the ruling, as trigger bans went into effect across the country, clinics closed their doors and frightened women tried to discern their options, there was no shortage of tragic stories highlighting the brutality, humiliation and gendered bigotry of the laws. But when the dust settled and members of the Democratic Party, major reproductive rights advocacy groups, and the liberal legal movement charted the national stage, a consensus emerged that the face of the mainstream pro-choice movement would be the Patient who had experienced a medical emergency. .
Women who had suffered horrific medical complications became lucid, moving and highly sought-after narrators of their own stories, explaining how the abortion ban has endangered their health: Amanda ZurawskiFor example, she was refused an emergency abortion at 18 weeks, subsequently suffered two episodes of septic shock and one of her fallopian tubes was so damaged that it is now permanently closed, hampering her future fertility. Kate Cox was denied an abortion after discovering that her fetus has trisomy 18, a rare genetic condition incompatible with life that, due to Cox’s own medical history, also endangered her fertility and life.
During her presidential run, Kamala Harris placed an ad featuring an unidentified woman only as Ondreawho suffered a miscarriage at 16 weeks and was denied standard care due to her state’s abortion ban. She developed sepsis and almost died. The ad shows a photo of Ondrea in a bathroom, staring at her body in a mirror, wearing only a sports bra. Her stomach bears the scars of the emergency surgery that ultimately saved her life – the surgery she would never have had to undergo without the ban.
It does not diminish the courage of these women, their suffering, or the wrongness of what was done to them, to say that they are only a small fraction of those who need abortions in America. These are middle-class married women with a desired pregnancy; Zurawski and Cox are both white. Cox has spoken movingly about her hopes to meet her future child, a girl; in the ad featuring Ondrea, she and her husband are holding a baby blanket. These are women whose suffering under abortion bans has nothing to do with a refusal or aversion to heterosexual, middle-class married life. Precisely because they are so acceptable, their suffering can be made visible.
Not so with Mary Poe. Poe may be married, middle class, and white; from her statement, in which she talks about the difficulty of finding childcare, we can deduce that she, like most abortion patients, is already a mother. But Poe isn’t suffering from a physical emergency; she does not suffer any pain or medical accident that she can use to purchase a social license. In other words, she is not a woman whose claim for abortion is based on a plea for mercy. She’s just a woman who wants to maintain control over her own life, someone who believes that things like privacy and self-determination apply to her too.
“I have decided that terminating my pregnancy is the best decision for me and my family,” Poe wrote in her public statement. “This is a personal decision, one that I believe should be mine alone and not made by anyone else.”
This was not always a radical proposal. But in the post-Dobbs world it has unfortunately become one.