New Abortion Ban Lawsuit Places Black Georgians Squarely at the Center of the Fight

ACLU of Georgia Executive Director Andrea Young speaks into a megaphone at a rally outside of the state capitol building May 21, 2019.

ACLU of Georgia Executive Director Andrea Young speaks into a megaphone at a rally outside of the state capitol building May 21, 2019.

By Imani Gandy. First published on Rewire.News.

A new lawsuit filed last week could eventually force the U.S. Supreme Court to examine how laws that attack abortion access disproportionately affect Black women and other women of color.

Centering the conversation on some of the state’s most vulnerable people was the American Civil Liberties Union (ACLU’s) motivation for naming SisterSong Women of Color Reproductive Justice Collective as the lead plaintiff in a lawsuit challenging HB 481, Georgia’s six-week abortion ban.

“I think the ACLU was very intentional,” Monica Simpson, executive director of SisterSong, told me in an interview. “The way that they wanted to approach this particular lawsuit was to make sure it was rooted in reproductive justice.”

Reproductive justice centers “three interconnected human rights values: the right not to have children using safe birth control, abortion, or abstinence; the right to have children under the conditions we choose; and the right to parent the children we have in safe and healthy environments.” Black women coined the term in 1994.

The reproductive justice movement was developed to challenge the anti-choice vs. pro-choice paradigm. As feminist activist and academic Andrea Smith explains in her critical essay “Beyond Pro-Choice versus Pro-Life: Women of Color and Reproductive Justice,” that binary is “a model that marginalizes women of color, poor women, and women with disabilities” and “reifies and masks the structures of white supremacy and capitalism that undergird the reproductive choices women make, and narrows the focus of our political goals to the question of the criminalization of abortion.”

The allegations in the complaint highlight how the legal right to abortion care does not always mean access to that care, especially for vulnerable communities.

In May, Republican Gov. Brian Kemp, who was elected under dubious circumstances, signed HB 481 into law. Dubbed the Living Infants Fairness and Equality (LIFE) Act—though it has nothing to do with fairness or equality and everything to do with reproductive oppression and cruelty—HB 481 bans abortion after a “heartbeat” is detected, which usually happens at around six weeks of pregnancy. Most people don’t know that they are pregnant at that time, which is generally two weeks after a missed period.

Notably, the language of the law—and indeed the prevailing language used by the media—is scientifically inaccurate. At six weeks, an embryo does not have a heartbeat. In fact, it has no cardiovascular system of any kind. Rather, the “heartbeat” in a six-week embryo is a group of cells with electrical activity. But “heartbeat” is far more provocative, and so that’s the language that anti-choice advocates and legislators settled on.

Georgia’s law also gives fertilized eggs, blastocysts, embryos, and fetuses that have not yet attained viability the status of “a class of living, distinct persons” that deserve “full legal recognition.” In other words, Georgia has granted personhood to so-called unborn children from the moment of fertilization without having to go through a messy constitutional amendment process like the one which played out in Alabama last year and led to voters in that state amending the state constitution.

Sister Song Plaintiff in Atlanta Abortion Lawsuit ACLU Lawsuit-1.jpg

The law is part of a nationwide assault on abortion rights. Anti-choicers’ salt-the-earth strategy goes beyond outlawing abortion; it could also criminalize miscarriage and potentially some forms of birth control. By passing laws that are unconstitutional under Roe v. Wade and Planned Parenthood v. Casey, anti-choice legislators are trying to provide a test case for the U.S. Supreme Court in the hopes that the conservative majority on the court will gut both. If that happens, pregnant people’s right to reproductive autonomy will be determined by a patchwork of state laws. (And, as my colleague Jessica Mason Pieklorecently wrote, Clarence Thomas has been champing at the bit to gut Roe, frequently complaining that he’s had enough when it comes to what he views as judicially concocted principles governing abortion rights.)

Laws like Georgia’s are not novel, and neither are lawsuits challenging them. In 2013, both Arkansas and North Dakota passed six-week bans that were permanently blocked by the Eighth Circuit Court of Appeals. Iowa’s six-week ban was blocked in state court in January, and a federal court judge recently blocked Kentucky’s six-week ban. I expect that Georgia’s law will similarly be struck down. So in that respect, this new lawsuit may seem unremarkable.

What sets SisterSong’s lawsuit apart from those that have come before it, however, is the explicit focus on Black women in Georgia. Indeed, the lawsuit squarely places Black pregnant people at the center of the abortion fight.

The allegations in the complaint are blistering and pointed: “Georgians face a critical shortage of reproductive health care providers, including obstetrician-gynecologists, and the rate at which Georgians, particularly Black Georgians, die from pregnancy-related causes is among the highest in the nation.”

“Georgians face one of the highest risks of pregnancy-related death in the nation, and pregnancy is three times as deadly for Black Georgians as it is for white Georgians,” it continues. “Rather than working to end preventable deaths, and rather than honoring Georgians’ reproductive health care decisions, the Legislature has instead chosen to criminalize abortion from the earliest stages of pregnancy.”

The lawsuit highlights how the attacks on abortion rights in Georgia will hit Black women the hardest, and emphasizes how difficult childbirth in Georgia is for Black women.

The conversation leading up to the filing of this lawsuit has been scattered. As reproductive justice advocates have tried to focus attention on the pregnant people the law will harm, celebrities have managed to center themselves in the social media conversation with ultimately unhelpful ideas like sex boycotts. In the wake of this chaos, reading SisterSong’s complaint was a breath of fresh air. As Jim Galloway noted for the Atlanta-Journal Constitution, SisterSong’s complaint is “part lawsuit, part feminist manifesto.”

I would add that the lawsuit reads like a Black feminist manifesto. And with Black women being at the center of so many recent political debates—whether it’s Sen. Kamala Harris (D-CA) taking Joe Biden to task about segregation or the media’s focus on Black women voters—it seems fitting that Black women and reproductive justice are at the heart of Georgia’s lawsuit. Indeed, it’s a long time coming.

“We saw this as an opportunity as a reproductive justice organization that’s been working for over 20 years to move reproductive justice as a frame and a movement to [the] center position because it’s so intersectional, because it’s human-rights centered, because it centers Black women, indigenous women, and Latinx women,” Simpson told me.

“The lawsuit centers all the right things that have been de-centered in these conversations. And it talks about the fullness of one’s life. It is not taking a single-issue approach, which I think continues to keep us in the reactionary mode: where we aren’t organizing, and mobilizing, and using a more intersectional frame.”

Simpson is absolutely right.

Thousands of protesters gathered at the Georgia State Capitol building in Atlanta to march

Thousands of protesters gathered at the Georgia State Capitol building in Atlanta to march

This lawsuit may be a vehicle for Black women to finally have a national conversation about reproductive autonomy as it pertains specifically to us. Many anti-choice advocates keen about the abortion rate in Black communities falsely accuse Planned Parenthood of using abortion as a eugenic tool to eliminate the Black population and lament that abortion is Black genocide. Despite these paternalistic claims, Black women have long understood reproductive coercion. This country was built from the wombs of Black women.

And I mean that literally. Domestic slave-breeding—which is just as dehumanizing as it sounds—was widespread during slavery, especially as the transatlantic slave trade was dwindling. An enslaved Black woman’s fertility frequently determined her worth. In order to protect themselves and their children, Black women frequently turned to herbal abortifacients and other DIY methods of abortion that included self-harm. It was not uncommon for Black women to kill themselves or their children in order to avoid repeated rape and forced childbirth or to avoid having their newborns ripped from their arms and sold into slavery.

Anti-choicers relish claiming that abortion is just like slavery and that laws legalizing it should be eliminated, just as laws legalizing slavery were. As I have written before, comparing abortion to slavery strips Black women of their agency and removes the enslaved Black woman’s experience from the historiography of slavery. But the comparison to slavery is unfit for an additional reason. Mandating birth for pregnant Black women is—to borrow a phrase from the 13th Amendment that abolished slavery—a badge and incident of slavery.

Perhaps this new lawsuit will lead to a national reckoning of the ways in which anti-choice legislators’ use of Black women as pawns in their abortion wars is not all that different from the ways in which white supremacy exerted a stranglehold on Black women’s reproductive freedom during slavery—and the ways it has continued to do so.

When it comes to reproductive rights, Black women have never been free, and this lawsuit is a good starting point for a conversation about that. I am certainly not expecting the conservative wing of the U.S. Supreme Court to make any groundbreaking revelations about reproductive justice and how this country has mistreated Black women for hundreds of years. But imagine the dissent that Justice Sonia Sotomayor will write should this case wind its way there. She routinely connects legal principles to their real-world consequences. Her dissenting opinion in Utah v. Strieff has been called a Black Lives Matter manifesto. Similarly, her dissent in Husted v. A. Philip Randolph Institute drew connections between Ohio using shady tactics to purge voters from their rolls and the consequences of those purges. I look forward to a dissent tackling the reproductive justice framework that might become a Black feminist manifesto.

The very thought of it is thrilling.

New York Is the First City To Fund Abortion Directly. Let's Make Sure It's Not the Last

New York City Mayor Bill de Blasio announcing the handshake agreement with City Council Speaker Corey Johnson, that will be ratified formally, to make New York City the first city in the country to fund abortion services for women needing financial support.

New York City Mayor Bill de Blasio announcing the handshake agreement with City Council Speaker Corey Johnson, that will be ratified formally, to make New York City the first city in the country to fund abortion services for women needing financial support.

By Alicia Johnson. First published on Rewire.News

Last week, abortion access advocates in New York made history. When the ink dries on next year’s budget, New York will become the first city in the country to directly fund abortion by allocating $250,000 to the New York Abortion Access Fund (NYAAF), which supports anyone who is unable to pay fully for an abortion and is living in or traveling to New York state by providing financial assistance and connections to other resources. This funding will help ensure that every person is able to decide when and whether to become a parent regardless of their income, type of insurance, or citizenship status.

In the face of increasing attacks on abortion access throughout the country, New York City’s commitment to funding abortion sends a powerful message—one that activists in other cities and states can push for.

This is an essential step as we work toward ending the Hyde Amendment, which bans federal funding for most abortions. And we know it won’t be the last: Advocates in progressive cities like ours can seize the opportunity to turn supporters into champions, to advocate for policymakers who talk the talk about abortion access to also walk the walk. Even in progressive states, people face barriers to abortion access. Some people have federal insurance coverage that does not cover abortion care (including members of the military, veterans, and other federal employees), cannot use their insurance for privacy or safety reasons, or cannot afford an abortion despite insurance coverage (such as due to a high deductible). For individuals with low incomes, additional expenses such as travel, unpaid time off work, and child care can push abortion care entirely out of reach, and/or force them to choose between basic necessities (like rent and food) and paying for an abortion. Due to systemic barriers in health care, this especially impacts individuals who are Black, Latinx, immigrants, refugees, or transgender/gender nonconforming.

Directly funding abortion care is a concrete action to support people who need abortions and an important statement that the cruel and unjust Hyde Amendment can no longer stand. As New York City Council Member Carlina Rivera tweeted after the funding was announced, “Before Roe v. Wade, NYC was a haven for women who wanted the freedom to choose. It’s time for our City to be that beacon for the country once again.”

We are celebrating this week thanks to a strong coalition of advocates working together to develop a grassroots and political strategy. NYAAF could not have accomplished this victory without the leadership of the National Institute for Reproductive Health (NIRH), the consistent vision and bold messaging of All* Above All, the grassroots mobilization of WHARR: Women’s Health and Reproductive Rights, and the contributions of many others committed to lifting barriers to abortion care.

The Fund Abortion NYC coalition first came together in fall 2018, led by NYAAF and NIRH, to develop a strategy to pursue City Council funding for abortion care. This campaign grew out of informal conversations with the New York City Department of Health and Mental Hygiene about the possibility of funding, which led to the decision to launch an official campaign. With our combined political savvy, grassroots power, communications strategy, and understanding of the abortion funding landscape, we created a powerful force that offered a concrete policy action for policymakers who had long supported abortion access with their words. We found a champion in Council Member Helen Rosenthal, who helped us navigate the City Council budget process. Through lobbying and grassroots mobilization, we laid the groundwork and got our message in front of as many City Council members and citywide elected officials as we could.

New York City Comptroller Scott Stringer at New York City Hall's rally to include abortion care funding in the city's 2020 budget. | Susan Watts/Office of New York City Comptroller  Image via  City & State New York.

New York City Comptroller Scott Stringer at New York City Hall's rally to include abortion care funding in the city's 2020 budget. | Susan Watts/Office of New York City Comptroller Image via City & State New York.

The Fund Abortion NYC coalition built a powerful infrastructure. So when six-week abortion bans in Ohio, Mississippi, and Georgia and a near-total ban on abortion in Alabama galvanized New York policymakers to protect access to local care, we were well poised to connect them to direct action. We are especially grateful to City Comptroller Scott Stringer and Council Members Carlina Rivera and Margaret Chin, the co-chairs of the NYC Council Women’s Caucus, who made abortion funding one of their top priorities in the city budget. NYAAF and the Fund Abortion NYC coalition spoke at rallies, recruited new supporters, circulated a petition with thousands of signers, spoke with the press, and mobilized our base to make calls and send emails to council members.

In the end, the New York City Council was willing to help make abortion a reality for all of us, not just some of us. New York City’s fiscal year 2020 budget will include $250,000 for the New York Abortion Access Fund to support people facing financial and logistical barriers to abortion care.

Politicians and advocates across the country should look to local abortion funds and abortion access advocates to guide the way and identify ways to fund abortion in their own cities and states. We hope New York is just the beginning, and we invite organizers to look to organizations like All* Above All for a justice-oriented vision to repeal Hyde, and the National Institute for Reproductive Health for proactive local policy models.

The momentum to repeal Hyde goes beyond direct abortion funding: In the same week that New York made history by funding abortion, Maine also became the latest state to stand up to the Hyde Amendment by passing a law that requires both public and private insurance that covers prenatal care to also cover abortion care.

Let’s keep up the momentum. Our collective power can shift resources and culture, and create greater access to abortion care.