When the Supreme Court rules on abortion, activists will be ready

Last week, the moment that abortion rights activists have feared for decades finally happened. In a hearing about a plainly unconstitutional abortion ban in Mississippi, a conservative majority of Supreme Court justices made clear that they have no intention of upholding a legal right to abortion, a precedent enshrined by the 1973 case Roe v. Wade. Anyone who was paying attention, especially those on the front lines of this battle, saw this coming. After Donald J. Trump appointed three conservative justices to the Supreme Court during his presidency — declaring the end of Roe as “possible” — it was only a matter of time. 

While the court won’t issue its ruling in the present case (Dobbs v. Jackson Women’s Health Organization) until June 2022, legal analysts expect it to permit Mississippi’s 15-week ban on abortion. The move will invite states, as Justice Brett Kavanaugh suggested, to pass bills curtailing or essentially eliminating abortion rights with the Supreme Court’s blessing. The Center for Reproductive Rights, a legal advocacy organization that has argued before the court on major cases including Dobbs, projects that the fall of Roe will lead to various abortion bans in more than half of U.S. states, predominantly in the south and midwest. 

Activists are frank about what that will mean: “I think we have another generation’s worth of fights that we’re going to have to undertake to restore access,” says Destiny Lopez, co-president of the reproductive justice and abortion rights group All* Above All. 

But Lopez and other abortion rights activists have been preparing for this moment for years. They have no intention of surrendering to a Supreme Court decision. Instead, they plan to counter, with a spirit of defiance, any court ruling that makes abortion impossible or even more difficult to obtain. They’re searching for creative ways to help anyone get an abortion when they need it, primarily through funds that finance abortion care to help people afford travel to states where it remains legal, and by increasing awareness of and access to medication abortion early in pregnancy, which may be easier to obtain depending on state laws. At the same time, political activists are waging a long-term electoral war over who controls the presidency, Congress, and statehouses, and therefore, who can make sweeping legislative or legal changes, like enacting federal laws that protect abortion, or nominating progressive justices who will restore those rights. 

These activists don’t just want Roe back should the Supreme Court ruling dismantle it; they want reproductive justice, a concept pioneered by Black women who understood abortion access as a racial and economic justice issue. Unlike the moderate movement that shaped strategy for decades, and sometimes perpetuated stigma by rarely talking candidly about abortion, there’s now an emphasis on elevating women and people of color who unapologetically embrace it as healthcare and understand what their communities need most. Many activists see the Supreme Court ruling not as a moment for retreat, or reliance on past tactics, but to move forward boldly with a radical agenda that prioritizes equity and justice.  

“If [the fall of Roe] is going to be our new reality, our solutions have to meet that reality or think beyond that reality”

“If [the fall of Roe] is going to be our new reality, our solutions have to meet that reality or think beyond that reality, because I’m not sure going back to status quo is going to serve us,” says Lopez. 

At the National Network of Abortion Funds, it’s clear what a post-Roe world will look like: Hundreds of thousands of patients who can’t access abortion and need help traveling to a state where it remains legal. The NNAF, a membership organization for dozens of abortion funds that provide financial and logistical support to people around the country seeking abortion, has years of experience solving this problem. 

These funds solicit donations, which are used to defray or cover the cost of abortion care for patients who can’t afford it or must travel because their state has few providers. Expenses can include lodging, transportation, and child care. Funds have long served patients who can’t receive coverage for their abortion because they’re on Medicaid health insurance. Federal law, known as the Hyde Amendment, prohibits Medicaid from covering abortion care, with exceptions for rape, incest, and life endangerment. 

Debasri Ghosh, managing director of the NNAF, says demand far outstrips abortion funds’ resources, even though their financial support of people in need more than doubled from $4 million to $9 million over the past three years. The network received 80,000 inquiries for help in 2020, nearly twice as many as it got in 2018. The influx is partly the result of states passing new abortion restrictions in an effort to test different legal strategies. Some clinics shuttered or had to send patients elsewhere for care as they tried to comply with onerous restrictions. 

Ghosh says the NNAF’s long-term goal, regardless of what happens at the Supreme Court, is to provide everyone who seeks an abortion a “comittment that meets the totality of their need,” which can include financial, practical, and emotional support. “It sounds outrageous, but I think it’s radically doable, given how much organized wealth exists in this country,” she says. 

To make this possible, Ghosh needs individual donors to think of supporting an abortion fund like they do other charitable causes, such as food banks or parent-teacher associations, by setting up regular or monthly contributions. She also needs foundations that support reproductive rights, among other philanthropic donors, to provide significant direct aid to abortion funds, something that’s rarely happened in the past. Without such fundraising, abortion funds won’t be able to meet surging demand, nor will they be able to hire well-paid staff instead of volunteers. 

Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health, which manages nine abortion clinics in five states, also anticipates the migration of patients from one state to another. She envisions a “pro-choice concierge service” — a kind of travel network that enlists major companies, like airlines, hotels, and car rental agencies, to offer discounts or vouchers that safely, affordably get people who need abortions to a destination where they can receive them. 

This could start with an affirmative statement of support that companies are invited to sign, so they can “put their money where their mouth is,” says Miller, referencing corporate America’s penchant for casting itself as a champion of gender equality. If they really want women in the workforce, Miller believes companies must take a stand if the Supreme Court guts or overturns Roe. 

Miller is working another front, too: keeping independent clinics open. In Texas, where Miller operates four clinics, a controversial state bill has effectively banned abortion at six weeks, making it impossible to serve most patients seeking abortion. A spike in donations to Whole Women’s Health and the nonprofit organization Whole Woman’s Health Alliance — 16 times what both entities received last year — has offset the financial hit of losing so many patients, but Miller is looking at a future in which independent clinics are reliant on people’s generosity to survive. Indeed, the Abortion Care Network, a membership organization of about 100 independent clinics in the U.S., solicits donations on their behalf. The funds cover costs like paying staff, purchasing medical supplies, and covering legal bills related to compliance with regulations. 

While activists focus on keeping clinics open, they’re also trying to raise awareness of medication abortion, pills that safely end pregnancy within the first trimester. The Food and Drug Administration permits healthcare providers to prescribe them through regular or telehealth appointments, and patients can currently receive them in the mail because of the COVID-19 pandemic. In some states, patients needn’t visit a clinic at all, which is key for those who live in rural areas or otherwise can’t see a healthcare provider in person. Activists see the availability of medication abortion as helpful in the face of a devastating Supreme Court ruling, particularly if the FDA relaxes its regulation of pills and makes them permanently available by mail. 

Medication abortion can also be purchased without a prescription from online sources, including the private, abortion rights initiative Aid Access, but the FDA advises against doing so because consumers will “bypass important safeguards designed to protect” their health. The practice of self-managed abortion is illegal in the U.S. If states, in addition to banning abortion beyond a certain timeframe, heavily restrict use of medication abortion (Texas and a few other states already have), people may easily find the pills online but face the dilemma of taking them illegally. 

Still, Amelia Bonow, co-founder of the grassroots pro-abortion rights movement Shout Your Abortion, is so passionate about the role that medication abortion could play post-Roe that she and other activists, who were not pregnant, swallowed pills in protest outside of the Supreme Court on the day of the Dobbs hearing. Others want to promote abortion pills in more measured ways, but Bonow called the move an “act of defiance.” 

“We’re done standing around with signs that talk about our rights.”

“We’re done standing around with signs that talk about our rights,” says Bonow. “We are standing in front of this court taking abortion pills, and saying, ‘We’re going to do this forever, we’re going to help other people do this forever, you can never stop us.'” 

Sharing information about medication abortion isn’t without risk. Bonow acknowledges that Black and brown people, and those who are low-income, are most likely to be surveilled, targeted, and reported by authorities for using abortion pills to end a pregnancy on their own. Bonow and other activists agree that the push to promote medication abortion must happen in tandem with efforts to decriminalize self-managed abortion. (Shout Your Abortion and the legal advocacy group If/When/How, among other sites, provide resources for learning more about the legality of self-managed abortion.) 

In states where abortion is protected or likely to remain legal because of the legislature’s political makeup, advocates are still planning responses to the Supreme Court ruling. Their goal is to model what abortion access and reproductive justice can look like and to find ways to serve patients who will inevitably come to their states looking for care. In California, where abortion is a protected right, advocates have already released 45 policy recommendations for expanding access, including investing in abortion funds and reducing insitutional barriers to care. 

Dusti Gurule, executive director of the Colorado Organization for Latina Opportunity & Reproductive Rights (COLOR), is lobbying for a bill that would explicitly protect reproductive health rights, including abortion, as a fundamental right in the state’s statute. While there are no abortion bans in Colorado, the right to care is not protected by state law or a state court ruling. Democrats plan to introduce the bill in the legislature next year. If successful, it would theoretically be a bulwark against future attacks on abortion rights and access in Colorado. 

“We shouldn’t have to defend [the rights] we have every legislative session,” says Gurule. 

But Gurule is also working with state legislators on a different goal: urging them to think beyond the “pro-choice” label to become “reproductive justice champions.” Gurule says the difference is critical in the fight ahead. 

Whether or not Roe is rendered meaningless by the Supreme Court next year, activists are prepared for a battle that’s about more than clawing back lost rights. They’re set on securing reproductive health rights for all, like equitable access to healthcare and fair wages to support raising children, which were never guaranteed in the first place.