Imani Gandy: Reproductive Justice & Abortion Legislation
Podcast Transcript Season 2 Episode 26
Interviewer: Liz Goldwyn
Illustration BY Black Women Animate
This week’s guest is Imani Gandy, lawyer, senior legal analyst for Rewire Dot News and co-host of their Boom! Lawyered podcast. Imani is a self-described recovering attorney who founded and writes the award-winning blog Angry Black Lady Chronicles. Imani and Liz discuss the capitalistic history of abortion laws in the United States going back to the 1850s; the nuances of how our government can and does legislate abortion, and actionable ways we can support others as reproductive justice becomes increasingly restrictive.
The following is a transcript of the interview from the episode:
Liz:
Thank you so much for talking to me today.
Imani:
Oh, I'm happy to be here. Thanks for asking me.
Liz:
So you're in private practice for 13 years, right? What prompted the switch from insurance law to reproductive justice?
Imani:
It... actually I got laid off from my final law firm job and when they called me and told me that I was being laid off, me response was really?! So I figured that I was so excited to be laid off, I should stop trying to work in private practice and find something better to do. So that got me into blogging. It was sort of at the beginning of the Obama administration. Well, not the beginning. It was around 2010, 2011 and that was really when the Tea Party sort of exploded with all... the Tea Party exploded and then at the same time these anti-abortion restrictions also exploded. And it just occurred to me that I'd gone to law school ostensibly to help people and like so many young lawyers, you get swayed by all the money they throw at you. Or at least my generation of lawyers, we got swayed by all the money that they threw at us. And then 13 years on down the line and I'm looking at my life, thinking this isn't what I wanted for myself so let me try and make a change, so I did. And it fortunately worked out for me.
Liz:
And your blog is Angry Black Lady which you still...
Imani:
Angry Black Lady Chronicles. Archives are at angryblackladychronicles.com but since about September 2014, my blog has been hosted at Rewire.News. And obviously, the tone has shifted. I mean back in 2011, 2012, it was all snark and that sort of irreverent humor and now it's more serious writing, but we're just kind of... I think it's kind of cool. It shows the evolution of my writing and, I guess, my growth in this movement.
Liz:
And if you want the snark, listeners, but you also want to keep up to date with what's happening you can also follow you on Twitter where there is some snark.
Imani:
Plenty of snark from me on Twitter, that's for sure.
Liz:
So let's talk a little bit about the history of abortion in the US because prior to 1850, at least, in the US abortions were primarily performed by mid-wives and home grown practitioners. But abortion became a capitalistic endeavor, right around the mid 1850s which in turn prompted it to become more or less illegal in every state by the end of the 19th century.
Imani:
Yeah, that's absolutely right. I mean it's sort of fascinating when you look into the history of abortion because it's such a touchy issue. Such a profound cultural divide that one would think that it's always been that way and it really hasn't. It's a very sort of nascent... the anti-choice movement, as it's known now, is relatively new and certainly this notion that abortion is a sin and should be punishable by death or jail or what have you, that's also relatively new.
It's not like our country was founded on the principles of life begins at conception. Essentially, as you said, there were midwives, people who essentially were deemed to be Wiccan, who were not only performing abortion but also using sort of more natural homeopathic methods for birth control and abortion. Stuff that you shouldn't be using, like Pennyroyal, that sort of thing. I mean that's the sort of herbology that was being used at the time. But then the American Medical Association was formed and of course it was formed by a bunch of white guys. And they saw women's reproductive health, which they had ignored up until that point, as sort of something that women shouldn't be doing, right. Women shouldn't be doing medicine, this is our purview, our bailiwick. So... it sort of... they sort of merged with this growing religious idea that abortion is immoral. And it was not really because of any sincere belief that life begins at conception because up until that point, really life didn't begin until you felt it, right. It was just this idea of quickening. But in order to clamp down on women who were taking their own sort of reproductive health into their own hands and also to ensure that the practice of medicine remained within the male sort of purview, under the male umbrella, abortion became this demonized health care procedure.
Liz:
And so once again it was all about the money.
Imani:
All about the money and all about, basically, white patriarchy. Basically, until the American Medical Association forms in 1857, abortions are the province of midwives and homegrown practitioners. And then these bunch of white guys get concerned that they're losing money to witches performing homegrown...
Delivering babies as well as preventing unwanted babies, and so they make abortion illegal.
Liz:
Yeah, essentially. With hope of lawyers, obviously, and were in a lot of, I think at the time, the bar associations didn't allow women to be lawyers, either.
Then we're kind of, from what I understand, we're sort of silent on that front. Abortion is illegal from around 1900, and then we get to the late 1960's, and we have the Jane Collective in Chicago, Illinois.
Imani:
Right.
Liz:
Which I'd love for you to give us a little background on.
Imani:
Right. The Jane Collective were essentially a bunch of both... I mean, it was a bunch of women who got together and decided to sort of take control back from these male doctors who had sort of decided that they couldn't be trusted, with their feeble lady brains, to make decisions about their own reproductive health.
It was this underground collective of women. At first, they began to find abortion providers who were willing to come to Chicago. They would usually go to someone's house, and set up a pop-up clinic at a house, and they would work there for however many days, depending on however many clients they were expected to have.
And then after a while, a couple, and I can't remember specific names, but there's a really interesting book about it. If you just Google "Jane collective," basically the first book that comes up is a really, really excellent read, and it's very compelling, about this period of time. But these women were learning how to perform abortions themselves.
And so, they would have this whole process set up where if you thought that you needed something, there was a number you could call, and, "I'd like to speak to Jane." They would call you back and say, "I'd like to speak to Jane," very secretive just in case there was some sort of situation domestically that was compelling a woman to seek an abortion but was unable to share it with her partner, her husband, what-have-you.
And then, these women would show up at these sort of pop-up clinics and they would be counseled, much in the way providers counsel pregnant people now. They would be counseled and then they would have their abortion, and there were women there that were there to comfort them, were there to make them feel more at ease with what was going on. And it was basically a real sort of life-saving group of women who got together and decided, rather than watching their friends go to these abortion... I don't even want to call them abortion providers. I mean, they were just doctors that were performing abortions on people.
But, you know, it was very, very dangerous. Women were dying at really alarming rates, and it was just an unsafe procedure to have at that time with these unlicensed, unaffiliated abortion doctors. Or, doctors who were performing abortions. And it was just generally unsafe, you know what I mean? It was just not a good time. So, these women decided, in sort of keeping with their feminist practice, to take back control, to learn how to perform these themselves, and to ensure that women who needed them got them, and to make sure to counsel women, as well, just in case, as abortion providers do, so that women who aren't sure that they want one, aren't being rushed into something that they haven't thought about.
It was really a full array of care and counseling that was provided in Chicago right up until Roe vs. Wade passed, and the practice became legal. And then, also, there were other states that had legalized abortion; New York, for example. And so, women would travel there, but again, as we will see as abortion access continues to winnow down, it's not the people who can afford to go, to get on a plane and go to New York or go to Washington or go to Oregon to get an abortion that are going to be most effected by restrictions; it's low-income people. It's people on public assistance, and those tend to be primarily women of color.
The Jane Collective gets, basically, a lot of attention from the government, and becomes a target around 1972, dovetailing with the landmark Supreme Court case in 1972, Roe v. Wade in which a pregnant, single woman, Jane Roe, brings a challenge against the Texas abortion laws and sues on behalf of all other unmarried, pregnant women in the United States that want an abortion and are denied access to it.
Roe vs. Wade is the seminal landmark case that legalized abortion, right? But it legalized abortion in limited circumstances. It created this trimester framework, right? The state always has an interest in potential fetal life, but the question in Roe vs. Wade was, when was it appropriate or when was it constitutional for a state to step in and prevent a pregnant person, a pregnant woman, from getting an abortion out of deference to this interest in potential fetal life that they have?
The court essentially found that abortion was a due process right under this right to privacy that emanated from the due process clause, and it's a... and I'm going to back up again, because I realized your listeners aren't lawyers.
The 14th Amendment contains a due process clause. It contains this idea that you have the right to life, liberty; essentially, this Declaration of Independence stuff, right? The right to life, liberty, pursuit of happiness. Within the 14th Amendment, within the due process clause, there's this idea, this thing, called substantive due process. And so, when you think of due process normally, you think of procedural due process. You think of things like, oh, you have the right to an attorney if you get arrested or questioned by the police. Or you have the right to confront your accuser if you are going to be on trial.
That's procedural due process that has to do with the ways in which the government can sort of limit your liberty, if they feel that they constitutionally are permitted to. Substantive due process is more of a nebulous idea, but it's also an idea that comes from the 14th Amendment, and it has to do with matters that are more intimate. They have to do with sexual matters, with family matters, with abortion, and with contraception.
For the first time, in 1965, for example, the court ruled that contraception was legal for married couples, based on this right to privacy that it found in the due process clause of the 14th Amendment, this substantive due process right. And so, Roe vs. Wade sort of extended, expanded the right to privacy to also include the right to an abortion.
Now, that right to an abortion doesn't exist sort of whole cloth. It exists up to a point. The point that the court and Roe vs. Wade sort of delineated was fetal viability. And so, essentially, when a fetus is viable, it's at that point that a state's interest in potential life, this interest that the court said that they have, that's when their interest in potential life kicks in, and it's at that point that the state can sort of take over the reproductive decisions of the pregnant woman and decide, "No, you cannot have an abortion after this point."
Liz:
Roe v. Wade does a couple of things. One, it sort of... It doesn't blanket-give the right for all people to have an abortion, but it does make abortion legal in the country. But it also starts to contextualize the conversation of abortion as healthcare. Which, we're not...
Again, going back to the American Medical Association in 1857, obviously, they saw abortion as healthcare, or they wouldn't be so concerned about it, right?
Imani:
Absolutely. And what it also did is it set up this... based on, obviously, pregnancy is a healthcare... It's a health-related issue, and so, what the court did is it took this health-related issue and broke it down into a trimester framework.
Up until the first trimester, most abortions occurred during the first trimester, and those are the safest procedures, right? The complication rate for abortions in the first trimester is just absolutely minuscule. And so, it's at this point, the court said essentially that, "You know what? We're going to leave it. Leave the decision to the pregnant woman. We'll leave it to the quote-unquote, 'mother' to decide whether or not to carry this pregnancy to term."
During the second trimester, the court said, "Well, that's when it starts. The state's interest in potential fetal life starts to butt up against the woman's interest in maintaining her own reproductive freedom as it stems from this right to privacy in the 14th Amendment." So, it's at that point when states can begin to interfere with abortion, but essentially, they can only do it in order to protect the health of the mother.
As you said, this sort of starts to create this framework that states are not only concerned about potential fetal life, but they're also concerned about health, they're also concerned about the health of pregnant people. And then, it's in the third trimester, that final trimester, wherein the state can just essentially ban abortion altogether except for when it's necessary to preserve the pregnant woman's health.
And so, it's at that point... Fetal viability is the point where the state can come in and say, "No, no, no, no. You no longer have a right to make this decision for yourself. We are going to say that you are not permitted to get an abortion, unless a doctor says your life is in danger, or there's some severe healthcare issue. And then, per your doctor's advice, the government is going to allow you to get an abortion."
Abortion, as it stands in this country now, is a negative right, right? You have the right to get an abortion only when the government says so, only under certain circumstances. The government can step in and say, "Wait a minute, we're going to prevent you from exercising this right under certain circumstances, but then leave you alone to do what you want when those circumstances are not applicable." That makes this very crucial human right, the right to an abortion, a negative right. And that means the government is not sort of required to help you vindicate that right, because if the government were required to help you vindicate your reproductive healthcare rights, that means that the government is required to help you make the best decision about your reproductive autonomy as can possibly be made.
And that means that, in some circumstances, if getting an abortion is the best possible thing that you can do for your own reproductive autonomy, that means the government should be required to help you get that abortion. And I don't know if I'm being a little bit too obtuse in this idea of negative rights versus positive rights, but a negative right means you have the right to do something and the government doesn't have a right to interfere with you doing something. A positive right means, you have a right to this thing, and the government is required to help you obtain this thing.
And throughout sort of the legal history of abortion rights, it's always been a negative right. And so, now that we are in this space where we're talking more about reproductive justice as opposed to reproductive rights, reproductive justice being a framework that sort of centers the needs and concerns of women of color, of low-income women, these are women who were not sort of part of the conversation in 1973, right?
Now that we have this framework where people are more interested in looking at reproductive autonomy from a holistic point of view, it's at that point that I think the argument among lawyers can be made that abortion is a positive right, it's a natural human right, and as such, the government should be required to vindicate it that way. And I think that if... I mean, I'm not going to tell your listeners to go and read the Kansas opinion, but the Kansas Supreme Court ruled that abortion was a fundamental right under the Kansas State Constitution. And in that opinion, which is 200 pages long but it's this really glorious, beautifully written opinion that talks about abortion rights as a natural right, as a God-given right.
The opinion talks about John Locke, natural rights, and all of those natural rights are sort of natural rights that you found in the Declaration of Independence, and the sort of natural rights that conservatives would automatically stand up for and say, "We believe in these rights!"
Liz:
Like the right to bear arms, for example.
Imani:
Exactly. The right to bear arms, exactly.
Liz:
And also, as you've-
Imani:
But even the right to bear arms is a negative right, because the government doesn't have to provide you with guns, right? The government just can't interfere with you if you want to go and buy guns. But the right to bear arms isn't a natural right if you're talking about it from a philosophical standpoint, not the way the right to control your own body is.
Liz:
Imani, you make law sound very sexy.
Imani:
Okay!
Liz:
And when I listen to your podcast and you're talking about reading these 200-page law decisions with a glass of wine in the bath, you know, you make it sound like some light erotica, but these laws are actually very scary. And going back to the 14th Amendment, the next sort of big case that we come across before I want to bring us up to the heartbeat bills and where we are at in 2019, is Planned Parenthood versus Casey in 1992.
Which, really, for me, when I go back and look at that, to me, that reveals the trickiness of court rulings and their interpretations, that particular case.
Imani:
Right, yeah. I mean, Planned Parenthood vs. Casey is an interesting case. It's a plurality opinion, for one, which-
Liz:
What does that mean?
Imani:
Essentially means that... Yeah. It means that a majority of the justices agreed on the end result of how the case should turn out, but they didn't agree on a legal path on how to get there. And so, you have this kind of weird [inaudible 00:16:53] justices who wouldn't agree on the legal underpinnings, necessarily, of abortion as being a human right, but nevertheless believed that Roe vs. Wade was precedent, that criminalizing abortion across the board was still a bad idea. There were people who wanted Roe vs. Wade to be overturned as early as 1992
I mean, way earlier than that, but they thought that they would have a real shot at getting overturned in Planned Parenthood vs. Casey.
Liz:
And essentially, from what I understand, Planned Parenthood vs. Casey was a group of abortion providers who are basically challenging this idea that now, the states are doing all these tricky things like saying, "You need to have, the abortion clinic needs to apply by these particular set of rules," which aren't standard rules, about sanitation or best practices. They're kind of arbitrary, from what I understand. And in some cases, impossible to meet.
Imani:
Right! I mean, the statutes that were at issue in Planned Parenthood vs. Casey are essentially the sort of statutes that we're seeing now. One of them was an informed consent law that required providers to basically read a state-mandated script about abortion, essentially.
Another was a spousal notification clause, which required women who were getting abortions to tell their husbands first. There was another one that was a parental consent law, that-
Liz:
Which is a great idea if you're in a situation where you're dealing with domestic violence and you can't tell your partner that you are going to have an abortion.
Imani:
Right.
Liz:
Because you might die.
Imani:
Absolutely! And in Planned Parenthood vs. Casey, the court actually cited that exact reason for striking down that provision of Pennsylvania's law. The court said, essentially, "There are some women who are not able to tell their partners, and requiring them to do so places an undue burden in their way. It's an undue burden on their constitutional right to an abortion. It's a substantial obstacle.
Now, these are two of the legal terms that the court used: undue burden; we have this undue burden standard which basically says states can't pass laws that are an undue burden on a constitutional right to abortion. And then we also have this idea of a substantial obstacle, and whether or not a particular state law, for example, a law requiring spousal notification, whether that state law is a substantial obstacle to a pregnant woman who is seeking an abortion. And if telling your spouse means you might elicit a violent response, then that's a pretty quintessential substantial obstacle to your constitutional right to abortion.
What Casey did with this plurality of judges, and I just looked it up, I mean, the majority, it included O'Connor, Sandra Day O'Connor, who was sort of like a middle-of-the-road vote for many years, especially on abortion rights. And included Kennedy, who became known as the swing vote in the court for about 30 years. And then, there was Justice Blackman, who essentially...
Justice Blackman is a really interesting character, because he was appointed by Richard Nixon, and I feel like he might be the last, one of the last justices who was appointed by a president of the party that was opposite to the sort of jurisprudence they began to practice, right? Harry Blackman was very, very pro-abortion rights, and was appointed by Nixon, a conservative. There was a time when presidents appointed justices to the court without having a guarantee in advance that they would rule certain ways on certain issues. There was a time when litmus tests weren't as prevalent as they are now.
Liz:
Harry Blackman, Justice Blackman actually spoke at my high school graduation, because his-
Imani:
Really?
Liz:
Yeah! His grandson went to my high school, and he spoke at our graduation and I remember my mother, who took me to my first pro-choice rally when I was nine or 10, she was just so excited.
Imani:
That is the coolest thing!
Liz:
Yeah.
Imani:
That's really cool.
Liz:
And Justice Thomas was actually also involved in the 1992 Planned Parenthood vs. Casey.
Imani:
Ugh. Yeah. I mean… I always try to just ignore Thomas, because I just get so upset. I get so upset that he became Thurgood Marshall's replacement in the court. That's just, I find it personally offensive, as a black person and as a lawyer, but I digress.
What Casey did is Casey threw out the trimester framework that Roe had developed. They said that the framework was unworkable, and just tossed it out the window. And instead created this undue burden standard. And it's that standard that is sort of the most, I think even more so than Roe vs. Wade, which obviously, Roe vs. Wade decriminalized abortion, but Planned Parenthood vs. Casey provides the framework to determine whether or not how the states interfere in pregnant people's reproductive decisions and how it is that they vindicate this interest in fetal life that the court found that they had in Roe vs. Wade. It's Casey that sort of...
It provides the parameters that states must adhere to when they are enacting legislation that interferes with abortion rights. To talk about things like trap laws, you know, these laws that require clinics to retrofit themselves as ambulatory surgical centers, or laws that require doctors to have admitting privileges in local hospitals even though it's virtually impossible for doctors to get admitting privileges in local hospitals for myriad reasons, one of which is the hospitals just won't give admitting privileges to doctors because they're Catholic and they refuse to engage in any sort of abortion care.
Or two, because, as I said earlier, abortion is such a safe procedure, especially in the first trimester, where 90+ percent of abortions take place, there's never going to be a need for an abortion provider to admit multiple patients into a hospital, and hospitals will only give privileges to doctors that can guarantee they're going to admit a certain number of patients into their hospitals.
Liz:
Because it comes back to money! It comes back to money.
Imani:
It comes right back down to money, and so it's a really weird paradox that you have that abortion is such a safe procedure, that if doctors were admitting as many patients into hospitals as hospitals require them to admit, it would make them really bad abortion providers. So, it's just this sort of really perverse and paradoxical paradigm that these legislators have sort of forced upon abortion providers in a way that ignores the science of abortion care and abortion practice, and also ignores the capitalistic nature of the way that hospitals are run, which makes it impossible for abortion providers to comply with these laws! If that makes sense.
Liz:
Yeah. Speaking of perverse and paradoxical paradigms, which is a great catchphrase that I'm going to start using now, thank you...
In the first half of 2019, we have seen in the US this series of radical anti-choice bills being introduced, which are part of a larger conservative strategy to overturn Roe v. Wade and to determine when life begins and what constitutional rights apply. These heartbeat bills, as we know them, which outlaw abortion after six weeks... And just to be scientific, at six weeks' gestation, there is no heart.
Imani:
Nope.
Liz:
There is no heartbeat, and there is no fetus.
Imani:
Nope! That's right.
Liz:
So, what can actually be measured in six weeks is electrical activity in that pole.
Imani:
Yep. That's right.
Liz:
About six weeks pregnant, again, just to give you some context, is about two weeks late on your period.
Imani:
Yeah.
Liz:
These heartbeat bills are not coming out of nowhere, out of the blue in 2019. These bills, actually... I thought this was so fascinating, your episode where you talked about Janet Porter, who led an anti-choice activist group and is also anti-LGBT, called Faith to Action. In Ohio in 2011, she starts pressuring Ohio lawmakers to pass anti-abortion bills, and she sends thousands of heart-shaped balloons saying, "Have a heart! Pass heartbeat bills!"
And she also sent children into state legislator holding teddy bears with recorded heartbeats. She had this huge, theatrical display.
Imani:
Yeah.
Liz:
She's kind of considered the godmother, from what I understand, about the heartbeat bill movement. And she even openly bragged that these heartbeat bills would outlaw abortion, quote, "Before the mother even knows she's pregnant."
Imani:
Right! And that's exactly why the bills are crafted the way they are. I mean, these heartbeat bills are really, really irritating because of the way in which they've been deployed, especially in Ohio.
We have, I think in 2018, John Kasich, the Ohio legislature passes this heartbeat bill, and John Kasich comes out and says he's probably going to veto it, but, you know, he lets the whole idea of a six-week ban percolate in the media and in Ohio hearts and minds for a while to get people all riled up about how ridiculous it is, you don't even know that you're pregnant usually at that point. Or if you do, it's because you've missed your period for two weeks, and women just aren't that regular. I mean, there's a whole host of reasons why it's absurd to try and ban abortion at six weeks. But mostly because, as you say, there is no heartbeat, so, again... I'm not going to say again, because I don't think I've talked about this.
But the ways in which anti-abortion activists operate is to marshal junk science in an effort to overwhelm legislatures that don't know any better, or to provide the legislatures that are more deceitful with enough crap in order to make the laws that they are passing seem like the have some sort of scientific basis. And so, you have that with the six-week bans, and you have that with the 20-week bans, right? The 20-week bans that are based on this notion that fetuses can begin to feel pain at 20 weeks, which, the medical consensus is that fetuses don't begin to feel pain until they are viable, which is 24 weeks. And as we've already discussed, viability is the point at which states can begin to interfere and tell pregnant people that they no longer have control over their own reproductive system.
In a sort of interesting twist, anti-choicers have been using Roe vs. Wade as a benchmark in order to literally develop entire institutes that are dedicated to marshaling junk science, to funding junk scientists, to peer-reviewing other junk scientists in order to make the junk science seem like it's actually scientific, seem like it's been accepted by the scientific community, when really, it's always been accepted by other of these junk scientists in the scientific community. Then all of that sort of nonsense gets rolled up and packaged and presented to a legislature, and so, what we had in Ohio is that the six-week ban and the 20-week ban were both being considered at the same time.
Kasich says, "Well, I'm going to veto the six-week ban, but I'm going to sign the 20-week ban." When he does that, when there are governors that sort of played this game with the 20-week bans versus earlier bans, they're sort of saying, "Well, look, we all realize that these heartbeat bans and these six-week bans are completely unreasonable. I mean, you don't even know you're pregnant at six weeks, right? But 20 weeks, we can all agree, as reasonable people in a decent society, that pregnant people should not be aborting babies at 20 weeks."
And so, they've used the sort of ridiculousness of the six-week ban to prop up the more sort of reasonable-sounding 20-week ban, when 20-week bans are as unconstitutional as six-week bans because they're all pre-viability abortion bans.
Liz:
And these bills are essentially designed to gaslight people by putting these two anti-choice bills up against each other that are both extremely unconstitutional, but the lesser of two evils gets passed.
Imani:
Absolutely! And when you think about what it means for people who are getting abortions at 20 weeks or passed 20 weeks, that's really just outright cruelty, because those abortions make up such a small percentage of the number of abortions that people get, that occur, but those are usually or frequently the hardest cases, right? These are the cases where a mother who has decided, "I want to carry this pregnancy to term, I want this baby," finds out that there's a problem, that there's a genetic anomaly, that there's some sort of medical issue that will endanger her life if she carries the pregnancy to term.
And so, by using... I'm of the mind that anyone should get an abortion for whatever reason. Right? It's your own body, it's your own choice. But by weaponizing these harder cases against the sort of, quote-unquote, "easier" cases, it's a very gross and, I think, just kind of ugly way to, as you said, gaslight people into supporting something that they don't really understand and that they don't really know why they're supporting. Because I believe, and I read this somewhere, that once you start to explain to people what it is a 20-week ban does, or what it is a six-week ban does, then they don't support them anymore!
The reason that anti-choicers have used these market-tested language, these market-tested terminology, this market-tested language like "heartbeat ban", like "fetal pain," like... What's another one?
Liz:
I mean, it's designed to play...
Imani:
"Partial birth."
Liz:
It's designed to play on or empathy. It's designed to play on our heartstrings, is turning it into a Hallmark...
I mean, it's quite fascinating, when you go into the history of the pro-life groups who, again, tend to be very anti-LGBTQ, as well, that they have these... They even...
Randall Terry, who founded Operation Rescue in 1986, he got a lot of his tactics, he co-opted them from the Civil Rights demonstrations pioneered by Martin Luther King. You know? It's just like, MLK would be rolling in his grave to think about that. These sit-in sort of tactics. And again, Janet Porter.
Imani:
Oh, absolutely. Especially because they frequently devolve into violence and, in fact, Operation Rescue has promoted violence as a way, has promoted killing doctors as possibly justifiable homicide. So, the idea that they are in any way connected to the Civil Rights legacy of Dr. King is just preposterous.
Liz:
But then, there's also this idea that if you're so concerned about life, right, if life is important to you, then in your valuing life, why do you not value the life of the mother or the child post-birth?
Imani:
Right.
Liz:
Why are they not involved in foster care? Why are they not involved in adoption? And to take it a step further, there's a great bit, I don't know if you've seen it, that Sarah Silverman did recently, about re-contextualizing sperm as having life. If you take that as the premise, that therefore, every time someone with a penis masturbates or climaxes without fertilizing an egg, they're essentially killing life!
Imani:
Yeah.
Liz:
Right? So, what are we doing with all of these mountains of sperm?
Imani:
That's a great question. It's like, what are we doing?
Yeah, I mean, obviously, the reason, the answer to that question, is because men are seen as full people who are able to make decisions about what they want to do, when they want to do it. And the fact of the matter is, women still aren't seen as full people. You know?
And I've been recently reading an article, an essay, by a quote-unquote "pro-life feminist." Her name is Mary Krane Derr, and as far as quote-unquote "pro-life feminists" go, she is among the very small percentage of, quote... I'm going to keep saying quote-unquote... Quote-unquote, "pro-life feminists" who are anti-abortion but they actually sort of embrace all of the rest of the reproductive justice principles. Right? They're against the death penalty, they're for prison abolition, they're for contraception and better sex education.
I mean, they are not from the evangelical wing of quote-unquote, "pro-lifers," but at the same time... And so, I'm reading her essay and I'm thinking to myself, "I agree with you on all of these things, but ultimately, if you are of the mind that you should be able to legislate what someone else does with their body, then I don't see how you can call yourself a feminist." Right? Because I'm really, I've been trying to be more open-minded about choice and about this movement that we're in, primarily because I think that there is some room for collaboration when it comes to anti-choicers. But the problem is that you don't get a lot of anti-choicers or anti-abortion activist who are like this women that I mentioned, Mary Krane Derr, who actually believe in fixing society to such a degree that people don't need to have abortions, right?
I don't like having these conversations, these sort of Alyssa Milano-esque conversations about, "Well, nobody wants to have an abortion!" Because saying nobody wants to have an abortion is about as stupid as saying, "Nobody wants to have chemotherapy," right? It's not a matter of wanting a healthcare procedure; it's a matter of whether you need one at a specific time. But given that there are 50 to 60% of the population that oppose abortion in some certain circumstances, I think there is room to talk about how it is that we get to a society where abortion doesn't become a choice that people have to make, or feel like they need to make, because there's a [inaudible 00:35:56] that will support pregnant people.
Liz:
There's tax breaks for single parents...
Imani:
There's public assistance that will be fully and robustly funded.
Liz:
Sex ed in school, as you said. Proper sex ed.
Imani:
Right! Proper sex ed in school, proper family leave... In Sweden, for example. I dated a Swedish guy for a while, and he was telling me that when you get pregnant in Sweden and you have a baby, there's someone from the government that comes to your house, when you go home from the hospital, to help you. Just free! They just help you. For as long as you need.
And imagine a system that, if we had a system like that in this country, where single mothers, where pregnant teens, where these sort of, the more vulnerable people among the pregnant population, had robust government systems that were in place to help them carry a child, birth a child, and raise a child in a safe and healthy environment. I mean, if I could find more quote-unquote "pro-life feminists" that are on board to work on that part of this problem that we're facing, then I'm on board for that. But the issue that I have found is that there are not a lot of quote-unquote "pro-life feminists" who believe in all of the stuff that would be necessary to make it so that they can have their goal, which is there are no more abortions in the United States.
It's just...
Liz:
Well, the scary-
Imani:
It's a disconnect!
Liz:
The scary thing is that we're getting... That's becoming a very likely reality right now. A number of states all have only one abortion clinic left in the state.
Imani:
Yeah!
Liz:
And I believe that includes Kentucky, Mississippi, Missouri, North Dakota, South Dakota, West Virginia, and I think Missouri could become the first state in the country with no clinics at all.
Imani:
Yeah. I think the court gave them a TRO, so they could stay open, but who knows what's going to happen at the end of that court case. So, yeah, you're absolutely right. TRO, Temporary Restraining Order. Sorry, for the non-law nerds among your listeners. But, yeah, I mean, we are dangerously close to the Gilead sort of dystopian future. We are certainly practically in a position now where the only people who are able to get abortions in a timely and easy manner are wealthy people, specifically wealthy white people.
And it's going to become much harder for low-income people, for people of color, to access abortion care not only because of the winnowing number of clinics and because of abject poverty and other issues that contribute to the lack of choice and the lack of access, but also because it's just... I think that the abortion restrictions are being enacted and sort of fomented on the backs of the most vulnerable people. And I think that it is really easy for anti-choicers to feign concern for these populations, right? To feign concern for black women and the high rate of abortion in the black community without actually doing anything that will make it easier for black women to have children and to raise children and to be safe about it.
Liz:
Well, what can we do? What can we do as people who, like myself and other people who are listening who are not lawyers, who can't go and fight these heartbeat bills state by state in places where we practice law, what kind of local abortion clinics and state funds do you suggest we focus our efforts and donation dollars towards?
Imani:
I would say the best and most useful support that you can give, if you're looking to get your hands dirty, is to call your local abortion funds and ask what they need. I'm seeing a lot of sort of very frustrated people who are just sort of new to this abortion war that we've been waging and their first instinct is to try to reinvent the wheel. "Well, I'm going to do a GoFundMe so that I can provide money for people who want to get abortions, who need to get abortions."
Well, there are people who do that, there are abortion funds that do that. I think the best thing that you can do is find out whether there's an organization that is in the state that you live, if the state in which you live is very restrictive when it comes to abortion access... If you happen to live in California or New York, I would pick an abortion fund like Yellowhammer in Alabama.
Liz:
Yeah.
Imani:
Or one of the ones in the South. There's one in Mississippi, Alabama, Georgia, those are the states where... Texas. These are the states where a lot of the abortion wars are being played out. I would find an abortion fund in one of those states and donate to them. If you live in those states, ask them what they need.
There are abortion clinics that need escorts. If you want to get your hands dirty, you can go and help pregnant people at the point of access, help them get through the door.
Liz:
And that is what I used to do, as a preteen, with my mother back in the day, is help escort people into the clinics. And let's remember, as well, that at Planned Parenthood and other reproductive health clinics, abortions are actually a very, very small percentage of the services that are provided.
Imani:
Absolutely! And I think, you know, Planned Parenthood tends to suck up all of the air in the room, and so the first thing that people think of when they think they want to help the fight for abortion rights, is, "I'm going to donate to Planned Parenthood."
Planned Parenthood, love Planned Parenthood, I really do; they don't need your money as much as some of these smaller funds do, or as much as some of these smaller clinics do.
Liz:
And, agree, because, I'm lucky. You and I both live in California, which we're lucky is such a progressive state, but it's very important, just like there not being clean drinking water in Flint, Michigan, is really all of our problem.
Imani:
Right.
Liz:
We can't allow people to suffer in other states because we're lucky enough or privileged enough to live in states that do protect our reproductive rights.
Imani:
Absolutely.
"Oh, one more thing," that people can do that I think is important, especially in light of our conversation earlier about the Jane Collective, is to really think about what it is you would be willing to do in the event that abortion is criminalized across the board. Right?
You need to think about whether or not you are willing to help that friend who needs an abortion obtain one illegally, and what that means for you. Because not everyone can sort of face down the carceral system, right? A lot of black people are not going to fare as well with confronting the carceral system as white people will, so if you are the sort of white person that's like... I don't know, can we curse on this show or not?
Liz:
Of course!
Imani:
Yeah, go get them?
Liz:
Yeah.
Imani:
If you're one of those, like, "Fuck yeah!" white people, and you're willing to put your body on the line, then that's something that you can think about. You can think about breaking the law in order to help people obtain abortions. You can think about whether or not you're going to start stockpiling medication abortion, and figuring out how you're going to deliver that to people who need it. And we are a lot closer, I think, than people want to admit to that point in time.
If you start thinking about what you're willing to do, if you talk to your friends about what you as a group are willing to do for pregnant people should it come to that, then when it does come to that, you'll be prepared. You know? You won't be sitting in shock, you won't have to spend weeks on end going, "What do I do? What do I do?" You'll already have an idea of what you're going to do because you'll know what your limits are.
Liz:
Have we seen the pharmaceutical companies, for example, who make the Morning After pills, have a horse in this race? I mean, have we seen them back pro-choice measures? Because they are... Again, going back to capitalism, they're going to lose a lot of money if those pills are outlawed.
Imani:
Yeah. I mean, honestly, that's not a question that I have the answer to. I would love if there was some benevolent person at Pfizer somewhere who was willing to start just mass-producing these things and handing them out, but it doesn't sound like exactly the way the pharma business is run, and I honestly don't have an answer to that question.
Liz:
Something for us to research here at the Sex Ed.
Imani:
There you go!
Liz:
Because when we... It all goes back to capitalism.
You know, what I'm concerned about, too, Imani, is how these are going to have a ripple effect, and already are having a ripple effect, on the rest of the world. In particular, Europe, the UK, Ireland.
Imani:
the way the US is exporting our abortion nonsense overseas, I mean, not only from a cultural and sort of just pop culture standpoint, but legally and politically, as well. Right? We are very much responsible for abortion [inaudible 00:45:21] in other countries to the extent that we withhold our dollars from family planning organizations overseas if they dare to talk about abortion. Right?
We have the overseas gag rule, the Mexico City rule, which prevents providing dollars to places that include talk about abortion in their array of family planning services. Which is absurd! And we go back and forth between Democratic and Republican presidents. Clinton did not have a Mexico City rule; Bush did. Obama didn't; Trump does. And Trump is now sort of expanding that... Well, not expanding it, I guess; shrinking that to apply domestically, as well. To where now he doesn't want to give federal dollars to domestic organizations that talk about or refer people to abortion. We're definitely exporting our sort of abortion angst overseas in a way that is really harmful, especially to developing countries that rely on American dollars to, for example, reduce the rate of HIV and that sort of thing. It is harmful not just to pregnant people here, but to pregnant people around the globe.
Liz:
What should we be on heightened alert for in considering candidates for the US 2020 elections?
Imani:
I think we should certainly be... The Hyde Amendment, obviously. Joe Biden got into a spot of trouble this week over that. I'm really, really glad that that's now just, seems to be just a plank of the Democratic platform, and I think we have a lot of really, really smart and savvy abortion rights activists to thank for that. People like... if you follow ErinToTheMax on Twitter, people like her. People like Erin, people like Pamela Merit, people like Lily Balourian, the organization Repro Action. I think they took out a huge ad in the New York Times back in 2016, basically making the case for why we needed to repeal the Hyde Amendment.
Liz:
Can you explain to our listeners what the Hyde Amendment is?
Imani:
Oh, right! The Hyde Amendment. So, the Hyde Amendment is a rider that is attached to the Health and Human Services' appropriations bill, the funding bill, and it says that abortion funds cannot be used... I'm sorry. Public funds cannot be used for abortion unless it's to save the life of the pregnant person.
And it essentially prohibits low-income people, people who rely of Medicaid for their healthcare, it prohibits those people from accessing abortion care. And when you sort of... to break it down to, I guess, its bones, it is essentially discrimination in the delivery of healthcare services. It says that people on Medicaid can't get funding for abortion, people who are in the military can't get funding for abortion, and people who rely on Indian Health Services for their healthcare. So, indigenous people can't get public funding for abortion.
And that's just... that's discrimination, plain and simple, and I believe earlier, I was talking about public opinion about abortion, what's interesting, and the way you frame questions when you're talking about it. I believe I was talking about that with respect to the six-week ban and the 20-week bans. What's interesting about the Hyde Amendment is that if you say to people, "Do you think that your tax dollars should go to pay for abortion?" They're going to say, "Well, hell no!" A lot of people will say no.
If you say, if you reframe the question as, you know, "Do you think it's fair for people who rely on Medicaid to not be able to get funding for abortion where others can?" Then the answer begins to change. If you couch it in terms of fairness, in terms of justice, people respond to that better than, "Well, do you want to pay for my abortion?" Which is the way a lot of these polling questions are phrased.
And so, when Henry Hyde first decided to attach that rider to the appropriations bill in 1976, he was very explicit about its purpose. And he said, you know, "I can't stop..." He said essentially, "I can't stop all abortions, but I can certainly make them less frequent by preventing poor women from getting them." I mean, he basically said that out loud.
It's on the record that this is a specific measure that is designed to ensure that poor people, poor women, can't obtain abortions. And there are studies that show that when poor women are forced to carry pregnancies to term, they are slipped further into poverty. And when those who don't fit that definition, whatever the federal definition of poverty is, which is way, way higher than what it should be, but people who don't fit that definition slide into that definition after carrying an unwanted pregnancy to term.
Forcing people to have babies makes them poor, right? It slides them into poverty, and then we run into a situation where once they're already poor, and once the baby is born, most people who are anti-choice move onto caring about the next fetus. They don't care about the product of that birth, right? The product of that pregnancy, which is a baby, which is a child, which is often a black baby, a black child, a black teenager, and so they don't support policies that enable these black babies, these babies of color, if you will, to grow up and to have a healthy and safe environment in which to live.
And it's just this sort of dichotomy that I can't understand why... It's a dichotomy between the ways in which women of color are infantilized, especially poor women of color are infantilized and told they don't have the ability to make these decisions for themselves, and that includes oftentimes forcibly sterilizing them. They infantilize women of color on the one hand, but then they also demonize them, right? So, as soon as that baby is born, it becomes, "Well, why are you having all these children? Are you just trying to collect a welfare check?"
It's just this sort of... I don't know, this existential battle for the souls of pregnant women of color that is really, really frustrating to watch play out because they care so much about the fetus, they care so much about whatever is in the womb, and then as soon as it's out of the womb, it's, "Get a job. Why are you sucking off the government's teat? What's wrong with your mom? Is she sexually promiscuous? Where's your father? This is the problem in the black community."
It's just very frustrating to watch all of this play out, and the Hyde Amendment has a lot to do with it, because it sets up a sort of tier system of healthcare delivery, where poor people who rely on the government for healthcare are on the bottom when it comes to reproductive health.
Liz:
When considering candidates for the US 2020 elections, let's make sure that they are not proponents of the Hyde Amendment, for one.
Imani:
Yes. For one.
Liz:
Yeah! For one. Let's make sure that they have a very comprehensive healthcare focus on their platform.
Imani:
Right.
Liz:
Let's make sure, obviously, that they are for reproductive rights. I mean, I think also, we need to look closely state by state, depending on where we live, at the bills that are being passed. I feel like people... And the media tends to really focus on the presidential candidates, but let's remember, folks, that it's really time to read your election brochures front-to-back and not gloss over the bills that are being passed because you don't understand the language.
There's this thing called the internet, and there's a thing called Google, and you can type in almost any single thing and look it up, and you can even type in the number of the bill and say, "Layman's terms," or, "Summary," and get a breakdown in language that is easier to understand.
Imani:
I can make it even easier for your listeners! At Rewire.news, part of what we do is we collect anti-choice legislation, so you can go to our legislative tracker at Rewire, and we have every anti-choice bill that has been proposed in every single state for the last six years.
Liz:
Well, that's very helpful.
Imani:
Yeah.
Liz:
So helpful.
Imani:
Literally, you can just go to the Michigan... you can click on the Michigan on the little map, and you can just start searching through topics. I mean, it's a very, very useful tool for you to find out...
And we update it, we're constantly updating it, so sometimes there will be a bill that, it's coming up for a hearing, for example, in your local statehouse, and you might be able to, if you're looking to get your hands dirty, go and protest. I mean, there are all kinds of things that people can do to get involved. But primarily, honestly, at this point, primarily what I think that people should do is figure out where they stand, what they're willing to do, how they're willing to help, and how far they're willing to go. Sort of pick a lane, pick an activist lane, and activism can be... It doesn't have to be going and getting arrested. It can be something as simple as advocating for something on Twitter, you know what I mean?
I know there are a lot of people who have social anxiety disorders, I am one of them, who don't do well in crowds, who don't necessarily want to go out and protest. But there's also quote-unquote, "changing hearts and minds," and if you can advocate for comprehensive reproductive healthcare, if you can praise politicians when they introduce bills that promote that sort of comprehensive reproductive healthcare, that also makes a difference, and I think people should not be shy about doing that.
Liz:
I've got one last question for you, Amani. What are you still learning about sex and the law?
Imani:
I mean, I guess, not something that I'm learning but something that I'm continuously fascinated by, is the ways in which the law infantilizes and demonizes women who have sex outside of marriage. I think it's really interesting, for example, that Griswold vs. Connecticut was a 1965 case that said that it's okay for married couples to have contraception, and then it wasn't until 1972 in a case called Eisenstadt vs. Baird where the court said, "Okay, fine, and unmarried couples can use it, too."
It's very interesting, the ways in which the law will infantilize and demonize women, and it's also specifically when it comes to women who get abortions, I find it fascinating that they are so willing to sort of harp on the trauma of out-of-wedlock sex and the resulting abortions can have on women, while ignoring the fact that there are scores of women, scores of perfectly healthy, perfectly happy women who are having sex inside of wedlock, outside of wedlock, and who just want or need abortions and don't regret it, and don't want to be shamed for it.
Liz:
Thank you! Thank you so much.
Imani:
You're welcome!