Kentucky pro-choice activists have prepared for the day when the court rules against them and makes abortion inaccessible — a possibility the country at large is now reckoning with since Supreme Court Justice Anthony Kennedy announced his retirement last week.
Kentucky’s last remaining abortion clinic is only open right now because a federal judge issued a temporary restraining order in March 2017 and blocked the state from revoking EMW Women’s Surgical Center’s license. The judge’s final ruling is expected any day now.
“We have a contingency in place,” said Kentucky Health Justice Network’s Marcie Crim, should Judge Greg Stivers ultimately side with the state, forcing the Louisville clinic to shutter and leaving the state’s residents without access to abortion. The plan also works if, let’s say, Roe v. Wade is overturned in a post-Kennedy court.
If a person can’t access abortion services in the state, Kentucky Health Justice Network will drive or fly them to where they can get one. They already drive people to Granite City, Illinois — a five hour car ride from Lexington where one abortion clinic recently closed. When Gov. Matt Bevin (R) successfully shut down the Lexington abortion clinic in January 2017, requests for her group’s services had “gone through the roof,” said Crim. They also drive people to Chicago, Illinois, Baltimore, Maryland, and Washington, D.C. for the procedure.
In May 2018 alone, the grassroots abortion fund helped 78 people get the procedure. Activists drove 45 people to nearby clinics or gave them a gas credit card. They also paid for 33 people’s abortion services because insurance wouldn’t cover it under state law restricting coverage; for a handful of those people, they also provided child care and lodging because Kentucky requires that a pregnant person wait at least 24 hours after mandatory counseling to get an abortion, thus turning an hours-long procedure into a two day event.
The contingency plan works for a hobbled or vanished Roe. The latter is a real concern since Kentucky lawmakers have made it clear that they’ll ban abortion to the maximum extent allowed under the Supreme Court. If Roe is overturned, Kentucky Health Justice Network will need to hire more than the 60 volunteers they currently staff or have them work overtime. It means they’ll need more people to donate money. It might mean having to turn people away. And for Kentuckians who need the procedure, it means a lot of hard choices.
“They are already choosing between paying electricity or buying groceries and paying for abortion care, and that will increase to an extent that is so frightening,” Crim told ThinkProgress.
Health care without government help
This network exists because getting an abortion is already really challenging for a lot of people, particularly for those of modest economic means. This infrastructure is set up in every state because a Supreme Court with Kennedy still upheld plenty of abortion restrictions. Kennedy voted to uphold state-mandated counseling, for example, which 35 states now require before an abortion is performed.
As professor at the Florida State University College of Law Mary Ziegler wrote for the Atlantic, “Kennedy searched for a middle ground in the abortion wars.” Today, Roe is intact and abortion is legal, but heavily regulated. One in five people have to travel upwards of 42 miles to get an abortion. And most people pay out-of-pocket because of stigma or laws restricting insurance — a procedure that could cost $500.
Roe is already waning for those living in conservative states, but it’s also true that without it, access could fare a lot worse in these same zip codes. Without Roe, legality will be left to statehouses already testing its limits. And these restrictions fall on low-income people and people of color, who disproportionately have abortions.
“The access is terrible and this will make it worse.”
States like Kentucky are already trying to ban a procedure, known as dilation and evacuation, that makes up the majority of second-trimester abortions. This lawsuit is making its way through the federal courts, potentially reaching a post-Kennedy Supreme Court where it could be upheld. Whether it’s laws like the D&E ban, that incrementally chip away at Roe, or a six-week ban on abortion, that would trigger an immediate challenge to Roe, activists know this forthcoming reality could be worse and strain existing resources. And this is why advocates are sounding the alarm.
“The access is terrible and this will make it worse,” said Blake Rocap with NARAL Pro-Choice Texas, about a post-Kennedy Supreme Court.
“The best thing you can do is — [because] it’s going to take 10 or 18 months or some amount of time before a justice is seated or case gets there — the most important thing people can do is go vote for candidates who are not going to vote to pass laws that restrict access to abortion,” Rocap told ThinkProgress.
That’s because if Roe is overturned, it’s still legal but left to states. Although, four states have “trigger laws” in place, meaning they automatically ban abortion if Roe is overturned.
Like Kentucky, Texas activists also have a network in place for people who want or need to terminate their pregnancy but struggle to do so on their own. Since the 1973 landmark decision in Roe, Texas enacted 338 abortion restrictions, accounting for nearly 30 percent of the 1,142 restrictions nationwide, according to the Guttmacher Institute. So now there are a handful of volunteer-led organizations that either drive pregnant people to the clinic (like the Bridge Collective), find them a place to stay (like Fund Texas Choice), or pay for the actual procedure (like the Lilith Fund) — all responding to state laws that make it especially challenging without an advocate.
“This is supposed to be our government’s job… we don’t want to have to do this work [but] our government has abandoned its duty in Texas to care for people in this way,” said the Lilith Fund executive director, Amanda Williams. “So the fact that we have to create this alternative network, autonomously — without government support, in a system that so-called appreciates life and values life — is really insulting and incredibly devastating.”
The Lilith Fund is only able to fund a quarter of people’s abortions who call their hotline seeking assistance. They don’t even have the capability to call back every person; Williams is the only full-time staff member.
They tend to prioritize folks further along in their pregnancy because of the 20-week abortion ban, Williams told ThinkProgress in March. This is especially frustrating because “everyone no matter what situation they’re facing deserves just basic health care and also just to control their own bodies,” she said.
There are abortion funds all over the country, who do the heavily lifting in states like Texas and Kentucky, and they’ll undoubtedly be overwhelmed if Roe is further undermined. This is why activists are asking now: “What would you risk to help keep abortion available to as many people as possible?”
People will find a way to terminate their pregnancy whether it’s legal or not.
In Texas, at least 100,000 women between 18 to 49 years old have attempted to end their pregnancies without medical assistance, according to a study with the University of Texas at Austin. Latinas living near the border with Mexico and women who reported barriers to accessing care were more likely to attempt self-induced abortion due to restrictive anti-abortion laws, said researchers. It’s unclear which law prompted people to self-manage.
“One of the first things that I thought of when Justice Kennedy’s retirement was announced was our work on self-managed abortion.”
This will likely be more common in a post-Kennedy court, so reproductive rights advocates want people to know there are safe ways to terminate a pregnancy given modern day medical advancements. The coat-hanger is a dated image of do-it-yourself abortions, said Reproaction’s Erin Matson.
“One of the first things that I thought of when Justice Kennedy’s retirement was announced was our work on self-managed abortion has never been more important and that every person in this country deserves the right to information about how to safely and effectively end a pregnancy with medication,” Matson told ThinkProgress.
Within the first 12 weeks of pregnancy, misoprostol is safe and 85 percent effective in terminating a pregnancy. It also can be purchased online. The World Health Organization (WHO) has said it’s on the list of essential medicines, creating a protocol for people who need to end their pregnancy and do so without a provider.
“I think we need to look to other countries where abortion has been totally banned and be prepared that that’s a reality we will see,” Matson told ThinkProgress. For larges swaths of the country, abortion access is also just a theory. So it’s wise to look there and build on that foundation, she added, and it starts now.
Correction: This post has been updated to correct that Erin Matson is affiliated with Reproaction, not Retroaction.