This has been a big month for abortion rights. In North Dakota, where there is only one abortion clinic, a District Court judge voided a two-year-old set of state restrictions on the use of medications to induce first-trimester abortions. And in Mississippi last Monday, a federal judge blocked some elements of state law intended to shut down the state’s only abortion clinic.
But make no mistake: The competition to shut down “the last clinics” in states with only one clinic is ongoing; call it The Red State Derby. In Mississippi, Arkansas, North Dakota, South Dakota and Wyoming, pro-life groups such as 40 Days for Life are working to bring about “the first abortion-free state where abortion is legal but it’s simply not available.”
Forty years after Roe v. Wade made abortion a constitutional right across the nation individual states are staging subtle and not-so-subtle insurrections, aiming to be the first clinic-less state.
This session, Arkansas passed a ban on abortions after 12 weeks with very limited exceptions. It briefly had banned any abortions after six weeks, according to Julie Rikelman, litigation director at the Center for Reproductive Rights. As Rikelman told me, North Dakota was not to be outdone by Arkansas. So North Dakota recently passed a ban on abortion at six weeks (which is when a fetal heartbeat can be detected) that hasn’t yet taken effect.
In Mississippi, the Red State Derby started to intensify in the spring of 2012. That was when the doctors at Jackson Women’s Health Organization, an abortion clinic in Mississippi’s state capital, were pressured to get admitting privileges at local hospitals. This was impossible: No local hospital would offer the clinic’s two doctors such privileges because the doctors fly in from out of state (partially for their own safety) and thus have no particular relationships with hospitals in the area. Privileges are typically only granted in-state. This pressure simply intensified other prohibitions — that parents of a minor must provide consent; that women must come to the facility twice to get a procedure and wait 24 hours.
“The Supreme Court says over and over again that the states can’t ban abortion, but these states put up meaningless hurdles,” Rikelman says.
The hurdles are to some degree coordinated. For instance, Missionaries for the Preborn announced that it has focused on states with one clinic, calling them “states of refuge.” Pro-lifers have said they are waging an ongoing campaign in these five states. In other words, pro-choice advocates will find the greatest threats to choice, and also some of their greatest victories, locally, state by state.
The Mississippi clinic has been allowed, for now, to stay open. On a visit there last November reporting this story, during the long countdown to this ruling, I came to understand how urgent the situation was and how most of the young women there had few other options. Most of them were in serious financial straits, earning near or below the minimum wage if they were employed at all. Even if they lived in the state, they often had to take off work for long drives or bus rides to the clinic; sometimes it was a two-hour ride each way. They often had other children at home or were still teenagers themselves. Some could not even afford birth control pills.
One woman from Yazoo City worked in an auto shop. She was 22 and had two children. One baby had been born at two pounds, the other at four pounds. She openly attributed it to bad prenatal care and to imagining that she wasn’t pregnant each time.
She didn’t have enough money to provide for her kids, she said. She was unmarried and barely earned minimum wage. Although she was just out of her own adolescence, she said she hoped to get her tubes tied, permanently preventing her from having more children.
She and the other women sitting in pastel hospital gowns awaiting their procedures were far from blithe. A number told me they feared God’s wrath, and that of their religious families. A 21-year-old police trainee waiting at the clinic didn’t tell her very religious Baptist family about it, and had to come up with excuses for the two and a half hours she drove each way to get there. As it was, the existence of just one clinic made it hard for her to get what she needed and made it hard for her to hide what she was getting.
I also listened and spoke to mostly local, all-white pro-life protesters using the refrain “black genocide” to describe the clinic patients’ choices. Sometimes these activists brought their kids and on occasion, guitars. One activist had apparently left a plastic fetus, the kind the pro-life folks distributed, lying near the clinic’s trash, a seemingly crude and wacky attempt to simulate real fetuses being “discarded.” The tension between the two groups was sometimes darkly comic and sometimes unbearable and certainly egged on by the “states of refuge” conceit.
The recent Mississippi and North Dakota rulings show that it won’t be a straightforward win for the pro-life activists. Even on the local level, which is where the action is in terms of reproductive freedom, there are still moments when the Constitution triumphs.
Yet we should remain vigilant about the threats from local activists. No matter your perspective on abortion rights, these states are flouting the Constitution, which is certainly a cause for dismay. And the state legislative assault on abortion is not ending. As Carole Joffe, a scholar at the Bixby Center for Global Reproductive Health at the University of California, San Francisco, told me, “North Dakota faces a host of other restrictive measures — and the state has set aside $400, 000 for expected legal battles … The larger abortion wars will drag on until voters in these red states make clear that they will not support politicians who focus obsessively on this issue.”
Even in Mississippi, the Red State Derby continues: In March the group Personhood Mississippi filed a new personhood amendment, a ballot initiative that appears to repeat a 2011 initiative that was rejected by Mississippi voters. And in the case of the clinic, it is staying open but not indefinitely: The state could decide to appeal the judge’s ruling.
Even when these last clinics stay open, the pro-life movement has succeeded in making abortion incredibly difficult in a number of states. And if abortions are made impossible, women like the two dozen I met in Mississippi – often young and poor, sitting uncomfortably in brightly colored rooms that they wished they needn’t ever have to visit ‑ would again have no choice.