– Update as of June 2022-
Since the recording of this episode, an unknown individual leaked the Supreme Court’s draft in the Dobbs v. Jackson case. Written by Justice Alito, it appears to overturn Roe v. Wade. The leak of this draft has caused ample movement from reproductive rights and reproductive justice organizations. It has also emboldened anti-abortion states.
As a Supreme Court press release clearly affirms, while the document is authentic, “it does not represent a decision by the Court or the final position of any member on the issues in the case.” It is important to note that abortion is still legal in the United States and that the final Supreme Court opinion has not been released.
For more information, please see: Press Release, Supreme Court of the United States, (May 3, 2022); and Josh Gerstein & Alexander Ward, Supreme Court has voted to overturn abortion rights, draft opinion shows, Politico (May 3, 2022).
Reproductive rights in the United States are being threatened more than ever. The enactment of state legislation curtailing the right to abortion – by imposing time limits, dictating mandatory waiting times, obligatory sonograms, and ever-stringent requirements for abortion clinics – is at an all-time high. Two of the most egregious examples of this phenomenon have been Texas and Mississippi.
Texas’ SB-8 prohibits abortions when the physician can detect a heartbeat, which can occur as early as six weeks. To implement this prohibition, rather than depending on state enforcement, SB-8 provides for the general public to police abortions. That is to say, any person can bring a civil action against any individual that performs an abortion, aids in the process of obtaining the procedure, or intends to engage in the aforementioned actions. Mississippi, on the other hand, has – since 2018 – outlawed any abortion after fifteen weeks of pregnancy. The statute provides no exceptions for cases of rape or incest, a characteristic that is shared by its Texan counterpart.
These statutes have set the scene for critical legal challenges, which will have far-reaching consequences. The Supreme Court, having addressed some of the issues posed by SB-8 in Whole Woman’s Health v. Jackson, has yet to emit a final decision on Dodd v. Jackson, which tackles the constitutionality of Mississippi’s fifteen week cutoff for abortions.
These statutes, and the legal challenges that have followed, bring forth important questions regarding how these laws came to be, who are the individuals most affected by these provisions, how race factors into this equation, what the future holds for reproductive rights in the United States, and what we can do to better assist in the efforts to support the right to abortion.
On today’s episode, we will address some of these questions through a Critical Race Theory lens, giving special consideration to which communities are bearing the brunt of the impact of Texas and Mississippi’s efforts at limiting access to abortions. Join us to discuss these issues with Prof. Carol Sanger, Barbara Aronstein Black Professor of Law at Columbia Law School and author of About Abortion: Terminating Pregnancy in the 21st Century. Also joining us is Anna Rupani, Executive Director of Fund Texas Choice, an organization dedicated to providing equitable access to abortion through transportation and accommodation assistance.
Anna Rupani
Anna is a lawyer and Executive Director at Fund Texas Choice.
Carol Sanger
Carol is the Barbara Aronstein Black Professor of Law at Columbia Law School where she teaches Reproductive Rights and the Meaning of Motherhood.
RESOURCES
If you have the means, please consider supporting the work of the following organizations:
Fund Texas Choice
Lilith Fund
The Afiya Center
Avow Texas
TRANSCRIPT
CREDITS
Production
Written, edited and produced by Sol A. Vásquez Ortiz, Lise Mitsinga and Sruthi Bopanna.
References
Amy Hagstrom Miller, What it’s like operating a Texas abortion clinic under state’s new ban, LA Times (Sep. 29, 2021, 10:55 am), https://www.latimes.com/opinion/story/2021-09-29/texas-abortion-clinic-state-new-ban.
Black Women’s Maternal Health: A Multifaceted Approach to Addressing Persistent and Dire Health Disparities, National Partnership for Women & Families, https://www.nationalpartnership.org/our-work/health/reports/black-womens-maternal-health.html.
Becky Sullivan, 21 states poised to ban or severely restrict abortion if ‘Roe v. Wade’ is overturned, NPR (Dec. 2, 2021, 6:18pm), https://www.npr.org/2021/12/02/1061015753/abortion-roe-v-wade-trigger-laws-mississippi-jacksons-womens-health-organization.
Cady Lang, President Trump Has Attacked Critical Race Theory. Here’s What to Know About the Intellectual Movement, Time (Sep. 29, 2020, 10:53 pm), https://time.com/5891138/critical-race-theory-explained/.
Candice Norwood, Policing and surveillance: How Texas’ abortion law could add to systemic racism, The 19th (Sep. 14, 2021, 11:13am), https://19thnews.org/2021/09/texas-abortion-law-people-of-color/.
Carol Sanger, About Abortion: The Complications of the Category, 54 Ariz. L. Rev. 849 (2012).
Carol Sanger, About Abortion: Terminating Pregnancy in Twenty-First-Century America (2017).
Induced Termination of Pregnancy, Texas Health and Human Services, https://www.hhs.texas.gov/about-hhs/records-statistics/data-statistics/itop-statistics.
Infant and Maternal Mortality Surveillance, Mississippi State Department of Health, https://msdh.ms.gov/msdhsite/_static/resources/8127.pdf.
ITOP Statistics, Texas Health and Human Services, https://www.hhs.texas.gov/about/records-statistics/data-statistics/itop-statistics.
Lani Guinier & Gerald Torres, The Miner’s Canary: Enlisting Race, Resisting Power, Transforming Democracy (2003).
Melissa Murray, Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle of Roe v. Wade, 134 Harv. L. Rev. 2025 (2021).
Michele Goodwin, Policing the Womb: Invisible Women and the Criminalization of Motherhood (2020).Oral Argument – Audio, Supreme Court of the United States, https://www.supremecourt.gov/oral_arguments/audio/2021/19-1392.
Paul J. Weber, Texas abortion law strains clinics: ‘Exactly what we feared’, AP News (Sep. 15, 2021), https://apnews.com/article/texas-courts-laws-e456aeea9fcd2dd86723cf915429e594.
Poverty Rate by Race/Ethnicity, KFF, https://www.kff.org/other/state-indicator/poverty-rate-by-raceethnicity.
Quickening and Fetal Development, Illinois Department of Human Services, https://www.dhs.state.il.us/page.aspx?item=48890.
Rachel K. Jones et al., New Evidence: Texas Residents Have Obtained Abortions in at Least 12 States That Do Not Border Texas, Guttmacher Institute (Nov. 9, 2021), https://www.guttmacher.org/article/2021/11/new-evidence-texas-residents-have-obtained-abortions-least-12-states-do-not-border.
Rachel Scott, Following one Texas woman’s abortion journey over state lines: Reporter’s Notebook, ABC News (Oct. 10, 2021, 12:39pm), https://abcnews.go.com/US/texas-womans-abortion-journey-state-lines-reporters-notebook/story?id=80485727.
Regulating Insurance Coverage of Abortion, Guttmacher Institute, https://www.guttmacher.org/state-policy/explore/regulating-insurance-coverage-abortion.
Sema Sgaier & Jordan Downey, What We See in the Shameful Trends on U.S. Maternal Health, NYT (Nov. 17, 2021), https://www.nytimes.com/interactive/2021/11/17/opinion/maternal-pregnancy-health.html.
Susan A. Cohen, Abortion and Women of Color: The Bigger Picture, Guttmancher Institute,https://www.guttmacher.org/gpr/2008/08/abortion-and-women-color-bigger-picture.
Texas QuickFacts, U.S. Census Bureau, https://www.census.gov/quickfacts/TX.
Transcript of Oral Argument, Dodd v. Jackson Women’s Health Organization et al., (2021)(No. 19-1392).
Whole Woman’s Health v. Jackson, No. 21-463, 2021 WL 5855551 (Dec. 10, 2021).
Yelena Dzhanova, Clinics in states neighboring Texas are seeing drastic increases Business Insider (Sep. 22, 2021, 8:05pm), https://www.businessinsider.com/texans-are-flocking-to-neighboring-states-to-get-an-abortion-2021-9.
Zoila Acevedo, Abortion in Early America, 4 Women & Health 159 (1979).