“For fifty years, Roe protected providers from legal risks like the ones taken on by the Jane Collective, an underground network of women in Chicago. Collective members arranged more than eleven thousand illegal abortions in the late nineteen-sixties and early seventies, until a team of detectives raided their makeshift clinic and charged them with multiple counts of “conspiracy to commit abortion.” (Just before their cases went to trial, the Supreme Court legalized abortion.) Arguably, providers face greater legal dangers now than they did before Roe. Carole Joffe, a sociologist who has written about the history of abortion, told me that doctors who performed illegal procedures in the past “typically received sentences of a few years,” whereas physicians today face “an aggressive anti-abortion movement that, in some states, is calling for life imprisonment.” Abortion opponents have also targeted organizations such as Planned Parenthood with spurious lawsuits and violent attacks, in an effort to shut them down.
[..] Tracy Weitz, a reproductive-rights scholar who directs the Center on Health, Risk, and Society, at American University, told me she is worried that these groups are being guided too strongly by attorneys whose priority is to shield them from lawsuits. The mission of Planned Parenthood is not “institutional survival,” Weitz said. “Their entire goal, their mission, is to serve patients.” If caution supersedes this goal, she warns, not only will patients suffer but the pro-choice movement will fall into a familiar trap. “One of the critiques of the abortion-rights movement is that we put too much faith in the law, believing that it would protect the right to abortion,” she said. “I think it’s ironic that all of a sudden we have turned over this movement to a whole new group of lawyers—not constitutional lawyers but risk managers.”
In the fall of 2021, a preview of how these dynamics could play out in a post-Roe era unfolded in Texas, after Governor Greg Abbott signed the Texas “heartbeat” bill. Better known as S.B. 8, the law banned abortion after six weeks of pregnancy, and it offered a ten-thousand-dollar bounty to any private citizen who successfully sued someone involved in such a procedure. In the view of some analysts, S.B. 8 was plainly unconstitutional—Roe v. Wade was then still federal law—and designed to intimidate both patients and providers. (Indeed, Planned Parenthood joined the A.C.L.U. and other groups in a lawsuit to block S.B. 8.) One might imagine that Planned Parenthood and other large pro-choice organizations, including the National Abortion Federation, which funds and supports many independent clinics, would have responded to this threat by urging providers to continue offering care and by pledging to defend anyone named in a lawsuit. Vicki Saporta, who served as the N.A.F.’s president until 2018, believes that such a strategy would have been both feasible and effective. “There could have been a legal-defense fund set up to pay out various ten-thousand-dollar suits while S.B. 8 was being challenged, and, in the meantime, care could have continued to be provided,” she said. Planned Parenthood and its affiliates, whose net assets exceed two billion dollars, have “the wherewithal to raise the legal-defense money,” she added.
Instead, Planned Parenthood’s South Texas affiliate instructed its providers to stop performing all abortions, even before six weeks. The affiliate’s apparent anxiety about lawsuits was shared by Planned Parenthood’s leaders and by its attorneys in Washington, who warned that Republicans in Texas could weaponize S.B. 8 to try to bankrupt the organization. Meanwhile, the N.A.F. [National Abortion Federation] announced that it would stop funding any providers and patients who didn’t comply with S.B. 8—and even pressed clinics to perform a second ultrasound after patients had endured Texas’s mandatory twenty-four-hour waiting period, in case a heartbeat could be detected then. Many Texas doctors refused to adhere to the N.A.F. directive. In fact, some physicians had the impulse to publicly flout S.B. 8. Shortly after the law took effect, Alan Braid, a provider in San Antonio, published an op-ed in the Washington Post in which he acknowledged having performed an abortion after the six-week limit. He explained that in the early seventies, while completing his ob-gyn residency, he had seen several women die from illegal abortions. “I understand that by providing an abortion beyond the new legal limit, I am taking a personal risk, but it’s something I believe in strongly,” he wrote. Braid told me recently that, at the time, he’d talked to several physicians who shared his feelings and who, like him, were willing to defy S.B. 8. If doctors were willing to fight, he wondered, why were institutions designed to protect women’s rights capitulating? [..]
According to the Abortion Care Network, sixty-two per cent of the clinics in the U.S. that perform abortions after thirteen weeks are independent. For procedures after twenty-two weeks, the figure is seventy-nine per cent. Nikki Madsen, the network’s co-executive director, told me, “When people need abortion care after the first trimester, they rely on independent clinics. This is the most expensive abortion care to provide, and it’s done at clinics that lack the institutional support, visibility, name recognition, and fund-raising capacity of national health centers and hospitals, making it especially difficult to secure the resources to keep the doors open.” Independent providers, she added, also deliver a disproportionate amount of care “in the most hostile states.” [..]
In a phone interview, Alexis McGill Johnson, the C.E.O. and president of Planned Parenthood, told me, “We’ve been making investments to open and expand access.” She noted that in southern Illinois—where the demand for abortion has surged, owing to bans that went into effect in neighboring states—Planned Parenthood recently launched a mobile clinic that can travel along the border. The organization, she said, has redoubled its commitment to “stand with our front-line staff” in the face of unprecedented physical and legal intimidation. “Planned Parenthood has long been targeted by security threats,” she said. “In addition to these threats, I think that we are now seeing the ways in which the opposition is just methodically continuing to enact laws that target providers and patients.”
The organization’s new initiatives are welcome, but they represent only a fraction of the combined annual budgets of Planned Parenthood ’s national and global offices and its affiliates, which is $1.7 billion. The Abortion Care Network has launched a fund-raising drive to support independent providers: it has raised just five million dollars in the past year. An abortion provider in Missoula named Joey Banks told me that after Dobbs she and her peers hoped that, because Planned Parenthood had the largest budget, it would be “the first to stand up and say, ‘Well, we have to close these three clinics that are redundant—we are going to find the biggest wasteland of abortion access and we’re gonna put some clinics there.’ ” Instead, she said, all the new brick-and-mortar clinics she knew of were independently run by people who, despite their more limited resources, were willing to act in a time of crisis.”
Full article, E Press, The New Yorker, 2023.5.8