Tuesday, November 2, 2021
JACKSON, Miss.—The U.S. Supreme Court will not hear Mississippi’s challenge to Roe v. Wade for more than a month, but leading abortion-rights organizers say they are not holding out hope for a favorable ruling in Dobbs v. Jackson Women’s Health Organization. Instead, they are preparing for a post-Roe Mississippi.
Most abortions, they expect, will soon become illegal across the South, and people will either have to travel far out of state to obtain abortions or else learn to safely perform their own.
“I am upset, of course, but being upset is not going to stop anything,” Mississippi In Action Executive Director Valencia Robinson told the Mississippi Free Press following an abortion-rights rally that she helped lead in Jackson on Oct. 2. “What we have to do is educate our community on what happens when Roe v. Wade is overturned.”
Those planned education efforts would include teaching people how to safely perform self-managed abortions, which take place outside of a clinic setting and without medical approval.
‘The South Is Going To Be Void Of Abortion Rights’
For those in the Magnolia State, the consequences of a Roe reversal would be swift and far-reaching. That January 1973 ruling guaranteed the right to obtain an abortion before fetal viability, which today happens at around 24-weeks gestation. Following the Roe precedent, the Mississippi Supreme Court struck down the state’s 1952 abortion law, which until then made performing abortion punishable by one to 10 years in prison with exceptions only for rape or to preserve the mother’s life.
In the Dobbs case, Mississippi Attorney General Lynn Fitch is asking the U.S. Supreme Court to overturn Roe v. Wade in order to allow a 2018 state law banning abortions after 15-weeks gestation to immediately take effect. That law includes an exception in the case of “medical emergency” or “severe fetal abnormality,” but none for rape or incest.
If the court agrees to Fitch’s ask, though, not only would the 15-week ban take effect, but it would trigger a 2007 law that would restore the pre-Roe law and “prohibit abortions in the state of Mississippi” at any stage, “except in cases where necessary for the preservation of the mother’s life or where the pregnancy was caused by rape.” Anyone violating that law by providing an abortion would, as in the pre-Roe era, face up to 10 years in prison.
“At such time as the Attorney General of Mississippi determines that the United States Supreme Court has overruled the decision of Roe v. Wade … the Attorney General shall publish his determination of that fact in the administrative bulletin published by the Secretary of State as provided in Section 25-43-2.101, Mississippi Code of 1972,” reads the 2007 law, whose authors apparently did not foresee the possibility of a woman attorney general.
The Mississippi Free Press asked sHERO Mississippi founder Michelle Colon, who organized the Oct. 2 rally in Jackson, for her thoughts on the likelihood that the U.S. Supreme Court will overturn Roe v. Wade when it rules next year.
“It’s ‘when,’” not if, she said. “I really do believe the Supreme Court is going to uphold the Mississippi challenge to (Roe), and what’s going to happen is the South is going to be void of abortion rights. Abortion will be illegal in the South. Pregnant people in Mississippi will have to go to Florida, Illinois and Kansas—those are the closest clinics.”
But the closest of those states, Florida, may potentially no longer be an option for Mississippians by the time the court rules in Dobbs, Colon noted. A Florida Republican introduced a bill last month that mimics a new Texas law banning abortions after six weeks—before most people know they are pregnant—and deputizing residents to enforce it through civil suits. Robinson and other abortion-rights organizers describe it as a “bounty” law. Others have compared the enforcement mechanism to fugitive slave laws.
In August, the nation’s high court declined to block the Texas law from taking effect while federal courts consider its legality. The decision to allow that law to take effect and ban most abortions in Texas was the surest sign yet to abortion-rights organizers that Roe v. Wade is likely to fall. Robinson said she envisions an “underground abortion movement” that will focus on teaching people about “Plan B and self-managed abortions” and offering “practical support” with things like “lodging, food and clothing.”
Robinson said the idea of an “underground abortion movement” was her own wording, not one used by others in the abortion-rights movement. She said she was not suggesting that she or other abortion-rights organizers would engage in any illegal activities in the event of Roe v. Wade’s downfall.
“We are talking about education; we’re not providing abortions or anything. It’s about getting people educated to understand what they need and that abortion is not a dirty word,” she said.
Self-Managed Abortion Education Not New In Jackson
While efforts to educate people on self-managed abortions may be ramping up, they are not new, said Laurie Bertram Roberts, the co-founder of the Mississippi Reproductive Freedom Fund and executive director for the Yellowhammer Fund in Alabama. In Mississippi, such efforts have already been going on above ground for years, Roberts told the Mississippi Free Press in an Oct. 8 interview.
“Since 2013, the Mississippi Reproductive Freedom Fund has been working in the community putting out information on how to safely do a self-managed abortion using misoprostol,” Roberts said, referring to a medication used for preventing stomach ulcers that a study found to be about 85% effective at inducing abortions in the first trimester.
“Giving out health information is legal to share. We’ve been building health networks for eight years in the community and training people who can train other people on how to use this medication safely and how to go online and find it and order it to your house.”
Roberts also mentioned mifepristone, which the U.S. Food and Drug Administration approved in 2000 for use to induce abortions. In 2016, the FDA also approved its use in combination with misoprostol for abortions. That combination is effective at ending pregnancies in about 95% of cases with side effects comparable to a miscarriage, a 2015 study found.
The FDA warns against ordering such drugs online from clinics outside the U.S. because such medications will “bypass important safeguards designed to protect your health.” But Roberts thinks anti-abortion groups are wrong if they believe fear of obtaining medications from foreign clinics online will deter people from self-managing abortions.
“The thing that’s so funny to me is now the anti-abortion people are trying to scare Gen Z out of taking the pill, which I think is such a waste of time because every generation since Gen X has taken so much medication throughout our lives,” she said. “We’re not scared of pills, and these kids have been ordering things off the internet their whole lives. So I don’t think the right is going to defeat this by just being like, oh, don’t do it. That’s the thing.”
Organizations ranging from the World Health Organization to the International Women’s Health Coalition already provide information online about self-managed abortion. The FDA officially sanctions using the misoprostol and mifepristone regimen up until 70 days after a person’s last menstrual cycle, but the IWHC suggests it can be used further into a pregnancy.
In a Sept. 17 amicus brief in the Dobbs case supporting the opponents of Mississippi’s 15-week abortion ban, 13 experts, researchers and organizations sought to draw the U.S. Supreme Court’s attention to the prevalence of self-managed abortions.
“People who need to end a pregnancy will find a way to do so. This reality has existed throughout history, and transcends borders, politics, and culture,” reads the brief, whose signatories include organizations like If/When/How: Lawyering For Reproductive Justice, Project SANA (Self Managed Abortion Needs Assessment) and the National Lawyers Guild.
“Where the law creates barriers to access, people will do their best to circumnavigate them; where the law bans abortion in the formal medical system, people will find ways to self-determine whether their reproductive lives outside of that system. This is known as ‘self-managing’ abortion: ending one’s own pregnancy, through whatever means, outside of the formal medical system.”
‘We’re Not In Coat Hanger Territory Anymore’
In the decades since Roe v. Wade ended pre-viability bans on abortion nationwide, including in Mississippi, supporters of abortion rights have often warned that a reversal could herald the return of deadly, illegal abortions using crude instruments like in the pre-Roe era. That does not have to be the case in the event that Roe is overturned, though, Roberts said.
“You still have people walking around with coat hangers and stuff. We’re not in coat hanger territory anymore,” she said. “There really are safe ways for people to do a self-managed abortion if they do it early enough and they get the stuff that they need. There are even really good recipes for herbal abortions. And yes, it really does work. No, it’s not as effective as misoprostol and mifepristone, but will it get you there if you’re early? Yeah.”
While it is not illegal for abortion-rights organizers to educate people about their options, performing an abortion outside of a clinic setting without medical oversight is already illegal in Mississippi and even self-managing ones’ own abortions carries legal risks—whether Roe falls or not.
“We know people are already doing self-managed abortions. They’ve never stopped, they’ve always been doing them,” Roberts said, adding that she first learned that people were using herbal remedies for abortion around 13 years ago—along with far more dangerous options like disinfectants. “Life comes at you fast, because soon after I knew people were drinking bleach and using turpentine.”
The Sept. 17 amicus brief quotes research showing that, between 2018 and 2020, “Mississippi was second only to Louisiana as the state with the highest rate of inquiries to an online source of self-managed abortion medication.” A prior study found that, between 2017 and 2018, Mississippi had the highest rate of such searches. Both studies found that the states with the most restrictive abortion laws ranked highest.
“In fact, Internet searches for terms like ‘misoprostol’ and ‘medical abortion’ grew by more than 5,000% after the announcement that this Court granted certiorari in this case,” the brief says, referring to the process by which the U.S. Supreme Court agrees to hear an appeal. “This suggests that people are either confused about whether abortion is legal, or preparing for an anticipated decrease in access by finding self-managed alternatives.”
Instead of dire warnings about coat hanger or bleach abortions, Roberts told the Mississippi Free Press, organizers should focus on preparing people for a post-Roe landscape by raising awareness about the fact that self-managed abortions, even if illegal, do not have to be dangerous.
“The thing is, people need to know there is a safe, low-risk option. We want people to understand that having access at clinics is important, but I also don’t want people to be scared to self-manage an abortion. That’s a right everyone should have whether clinics are closed or open anyway,” she said. “Because it’s your business, it’s nobody else’s business.
“My greatest fear with what is happening is that we’re going to see more people criminalized for pregnancy loss either for being suspected of using misoprostol and mifepristone or being caught using it.”
‘A Treacherous Path’
Since the Roe v. Wade ruling in 1973, the Dobbs amicus brief on self-managed abortion says, “more than 1,200 people suspected of having caused their own miscarriages or allegedly risking harm to their pregnancies have been arrested for offenses ranging from feticide to child abuse to poisoning.” Since the year 2000, at least 21 American women have been arrested for self-managed abortions or helping aiding someone else in obtaining a self-managed abortion.
In 2006, Rennie Gibbs, a Black 16-year-old in Mississippi’s Lowndes County, gave birth one month early to a stillborn daughter she named Samiya. A day after Gibbs’ loss, the medical examiner at the time, Steven Hayne, noted the probable cause of death as “homicide.” He announced that his autopsy tests had uncovered traces of cocaine in Samiya’s blood.
Prosecutors charged Gibbs with “depraved heart murder,” which Mississippi law defines as actions “eminently dangerous to others … regardless of human life.” Under the law, for which a Lowndes County grand jury indicted the 16-year-old in early 2007, Gibbs faced the possibility of life in prison.
The state attorney general at the time, Democrat Jim Hood, defended the decision to prosecute Gibbs, claiming that saying she should not be tried for murder was akin to say that drug addicts who steal money to purchase drugs “should not be held accountable for their actions because of their addiction.”
Deborah A. Frank, a Boston University School of Medicine pediatrician, also challenged the premise of Haynes’ findings, which relied on the idea that cocaine use is likely to cause fetal mortality. Writing in an affidavit on Gibbs’ behalf that ProPublica quoted in a 2014 report, Frank told the court that there “is no consistent association between cocaine use during pregnancy and serious fetal harms, birth defects, or serious long-term physical or developmental impairments.”
Expert witnesses for the defense later examined the toxicology reports and cited problems with Haynes’ findings, saying that while Samiya’s blood showed traces of a cocaine byproduct, the lab that did the test did not detect cocaine itself. The likely cause of death, experts said, pointing to placental blood clots, was “umbilical cord compression” that had cut off the fetus’ oxygen supply.
Gibbs was 24 years old by the time Lowndes County Circuit Court Judge Jim Kitchens dismissed the charges against her in 2014, saying the law was “unclear” on whether or not such a case should even go to trial.
Years later, in Oktibbeha County, Miss., a grand jury indicted another Black woman, 35-year-old Latice Fisher, in 2018 on second degree murder charges after she gave birth to a stillborn. After performing an autopsy, the state medical examiner claimed that the infant was born alive. Prosecutors alleged that Fisher had used a search engine to find information about self-managed abortions and bought misoprostol online.
Oktibbeha County District Attorney Scott Colom dropped the charges citing “confounding factors” that could have affected “the validity of the results” of the autopsy. When he presented the case to a grand jury once more in March 2020 with better medical information, though, the second grand jury decided against issuing an indictment, ending Fisher’s prosecution.
“The focus on the search history regarding self-managed abortion on Ms. Fisher’s phone belies the true impetus for this prosecution: abortion stigma,” the Dobbs amicus brief on self-managed abortion says. “Not only do prosecutions for pregnancy loss go forward without statutory authorization: these prosecutions also violate human rights.”
‘State Must Not Deter People From Seeking Care’
The Sept. 17 amicus brief on self-managed abortions cites multiple cases of women being prosecuted in other states over the past two decades, including a 22-year-old immigrant in South Carolina who was charged for allegedly using abortion pills mailed from Mexico to end her pregnancy; a low-income single mother in Idaho charged with “criminal abortion” for allegedly ending her abortion with pills purchase online; and a 20-year-old immigrant in New York whom prosecutors charged with “first-degree self-abortion” for allegedly using herbal tea to terminate her pregnancy in 2011.
In Alabama in 2019, prosecutors charged Marsha Jones, a 27-year-old Black woman, with manslaughter and indicted her on a $50,000 bond after someone shot her in the stomach, killing the fetus she was carrying. The prosecutor later dropped the charges.
“Banning abortions has never stopped people from needing them, and fortunately the option of self-managed abortion with pills has dramatically improved the safety of self-managed abortion worldwide,” If/When/How Senior Counsel and Legal Director Farah Diaz-Tello said.
“What is dangerous is the possibility that people will face cruel and degrading interrogations, arrests and even imprisonment. Banning abortion puts Mississippi, and the whole U.S., on a treacherous path that undermines decades of progress in reproductive health care.”
The amicus brief that organization signed onto also highlights another concern about criminalizing self-managed abortions.
“Although self-managed abortion is generally safe, the state must not deter people from seeking care in the event of a complication,” it says. “The need to ensure that people can access care without hesitation has led medical associations to decry the criminalization of self-managed abortion. … The American Medical Association shares this position, because criminalizing self-managed abortions ‘increases patients’ medical risks and deters patients from seeking medically necessary services.’
“Unfortunately, based on the experiences of individuals criminalized for their pregnancy outcomes in the U.S., the fears that drive people away from medical care are well-founded.”
‘They’ve Done Their Job’
On Oct. 13, Lynn Fitch, who became Mississippi’s first woman attorney general when she took office in January 2020, filed a new brief with the U.S. Supreme Court in the Dobbs case, arguing that “Roe and Casey are indefensible.” Casey refers to the 1992 U.S. Supreme Court case that narrowly upheld Roe’s central finding.
The side that supports abortion rights, Fitch says in the brief, argues “that millions of women have a meaningful life only because 50 years ago seven men in Roe saved them from despair—and that women’s success comes at the cost of ending innumerable human lives.”
“That is the debased view that Roe and Casey have produced. It is time to get rid of them,” Fitch wrote in the brief.
By ending Roe v. Wade, Fitch told the host of EWTN’s Pro-Life Weekly TV program last month, the U.S. Supreme Court will make women feel empowered “to really achieve (their) dreams and goals” and “have those beautiful children as well.”
After hearing the Dobbs case over Mississippi’s 15-week abortion ban on Dec. 1, the U.S. Supreme Court likely will not render a decision until mid-2022. Mississippi lawmakers could effectively ban most abortions in the state before then by passing a law like the Texas one. But Michelle Colon told the Mississippi Free Press that it probably “won’t matter” much.
The Legislature opted against adopting new abortion restrictions earlier this year. One bill this year, had it become law, would have imprisoned anyone who “willfully and knowingly” causes “any woman pregnant with child to abort or miscarry” or who “attempts to procure an abortion or miscarriage” for no less than one year and up to 10 years. It died in committee.
“The white oppressive patriarchy that exists on the street of High, they’ve done their job. You know they have, because the Supreme Court is now a majority anti-abortion court,” she said.
Several months after the Mississippi Legislature passed the 15-week abortion ban in 2018, a new U.S. Supreme Court seat opened up later that year when Justice Anthony Kennedy, one of five justices who voted to uphold Roe v. Wade when it was last tested in 1992, retired. Then-President Donald Trump replaced him with Brett Kavanaugh, a more conservative justice.
Following Kavanaugh’s appointment, anti-abortion Mississippi lawmakers decided to push the limits further in 2019 by passing a law banning abortions after a fetal heartbeat becomes detectable, which happens around six weeks gestation. The heartbeat law provides exceptions only “to prevent the death of the pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the woman.”
“With a fifth conservative taking the seat of Justice Kennedy, who was considered a moderate on the court, I think a lot of people thought, finally, we have five conservative justices and so now would be a good time to start testing the limits of Roe,” Sen. Joey Fillingane, the author of the 2007 law that will take effect only if Roe v. Wade is overturned, told this reporter in a 2019 interview for another publication.
After then-Gov. Phil Bryant signed the heartbeat bill into law, federal courts blocked it from taking effect, citing the precedent of Roe v. Wade. But in the event of a Roe reversal, federal courts would also likely allow it to become effective. If that happened, the only exceptions allowable after six-weeks gestation under the law would be “to prevent the death of the pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the woman.”
Unlike Fillingane’s 2007 law and the pre-Roe abortion law, the 2019 heartbeat law included no exceptions for rape.
‘We Don’t Have Friends At The Supreme Court’
When staunch pro-abortion rights U.S. Supreme Court Justice Ruth Bader Ginsburg died in September 2020, U.S. Senate Republicans rushed to confirm President Donald Trump’s replacement, Amy Coney Barrett mere days before the 2020 election—despite having previously argued against election-year appointments when a conservative justice died during former President Barack Obama’s final year in office. Barrett had previously endorsed an anti-abortion effort in 2006 and told a group in 2013 that she believed life begins at conception.
“I’ve never been afraid to stand up for our faith, the rights of the unborn and our Second Amendment gun rights,” U.S. Sen. Cindy Hyde-Smith said in an October 2020 campaign ad. “That’s why I’m supporting President Trump’s nominee for the Supreme Court, Amy Coney Barrett. She’s a woman of strong faith with a record of protecting freedom and liberty and she’s exactly who we need on our Supreme Court.”
When the U.S. Supreme Court declined an emergency request to temporarily block Texas’ six-week abortion ban from taking effect while it works its way through the courts in August, Barrett and Kavanaugh both sided with the 5-to-4 majority. Chief Justice John Roberts was the only Republican appointee who voted to temporarily block the law, joining the court’s three remaining Democratic appointees.
“We don’t have friends at the Supreme Court,” Robinson told the Mississippi Free Press on Oct. 2. “We’re always practicing and preparing for ‘when’ instead of ‘if.’ We had an upper hand at the Supreme Court when Ruth was there, but she’s gone, and we have this other conservative judge now,” she said. “We’re saying ‘when’ because we’re moving forward for when it’s overturned.”
This story originally appeared in the Mississippi Free Press. The Mississippi Free Press is a statewide nonprofit news outlet that provides most of its stories free to other media outlets to republish. Write [email protected] for information.
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