Last week, the Supreme Court surprised many by granting review in Dobbs v. Jackson Women’s Health Organization. That’s a challenge to Mississippi’s 15-week abortion ban. It’s a pre-viability standard that really stands as a direct, head-on challenge to the core holding of Roe v. Wade. We have talked so often about how the conservative 6–3 supermajority at the new Roberts court just wants to do away with Roe, but few thought it would happen this directly or this soon. Meanwhile, Texas Gov. Greg Abbott signed into law last week a bill that bans abortion the moment a fetal heartbeat is detected, at around six weeks. The bill also includes an astonishing provision that allows individual citizens to sue anyone they believe may have been involved in helping a pregnant individual violate the ban.
On the most recent episode of Amicus, Dahlia Lithwick wanted to hear from people on the ground about what’s at stake in states where clinics operate in the face of mounting restrictions. She spoke with Tammi Kromenaker, the clinic director of Red River Women’s Clinic in Fargo, North Dakota, and Amy Hagstrom Miller, the founder, president, and CEO of Whole Women’s Health LLC. Their conversation has been edited and condensed for clarity.
Dahlia Lithwick: Tammi, let’s start with you. Can you tell us a little bit about the kinds of services that you provide at Red River Women’s Clinic. What it is that you do?
Tammi Kromenaker: We are the only abortion provider in the state of North Dakota. We also provide abortion care to patients coming from South Dakota and northwestern Minnesota. So, we provide both medication and in-clinic suction abortion from the first positive pregnancy test up to about 16 weeks, depending on the physician who is scheduled. We also provide birth control. And it’s just very important that we’re here, that we see patients from this region. We’re the closest place for a lot of folks out of a three-state area.
Amy, same question. Do you want to talk a little bit about what happens at Whole Women’s Health clinics?
Amy Hagstrom Miller: Whole Women’s Health manages nine clinics in five different states. And we focus our work in the Midwest and the South, where the restrictions and political interference to people’s access to abortion are the greatest. Our clinics offer a full range of abortion care services from abortion with pills through in-clinic abortion. We offer care to the legal limit in most of the states that we’re in. So, some states we go to 18 weeks; other states we’re able to go to 24 weeks. We also offer contraceptive care, ultrasound, pregnancy decision counseling, long-acting reversible contraceptives, etc. And we do work also in the community doing education, advocacy, and communications work to hopefully disrupt and shift the stigma that surrounds abortion in this country.
I wanted to ask both of you how the news this week dropped in terms of what you were seeing, what women around you were saying, what the feeling was on the ground.
Tammi Kromenaker: We first heard from our attorneys at the Center for Reproductive Rights that the case had been taken up by the Supreme Court. Honestly, I don’t think it’s registered with the patients that we see. With the pandemic and the changes we’ve made because of that, people already feel like abortion is scarce and difficult to get in the area that we serve. I think people already half the time think it’s not available and not legal. So I’m not hearing anything from the patients we serve. It might be that it’s just too soon. It hasn’t really sunk in. Our staff, of course, reacted to it. But it just seems like it’s been an onslaught for so long. It’s just another attack on Roe. And the Supreme Court took up this case and then Texas passed their six-week ban, which North Dakota did in 2013. It’s like, Here we go again.
Amy Hagstrom Miller: For us at Whole Women’s Health, it was a really bad week. Not only did the Supreme Court decide to take up the Mississippi case, but we’ve been watching the 5th Circuit really closely because Whole Women’s Health has a case sitting in the 5th circuit where we have challenged the ban on D&Es in the state of Texas.
Can you explain what a D&E is?
Amy Hagstrom Miller: D&E is an abbreviation for dilation and extraction. And it’s the safest, most common method that’s used for terminating a pregnancy that’s in the second trimester. And so, we watched the 5th Circuit pretty closely and we knew any one of these cases could be the next case that the Supreme Court took up. And so, that happened in the same week that Texas passed the six-week ban.
It is on the minds of a lot of the people that we serve in Texas. It’s on the minds of our staff. We are already getting quite a lot of phone calls because most people who may need abortion services don’t pay attention to the politics, don’t pay attention to the legislature. One of the unique things about abortion is nobody ever thinks they’re going to need one until they do. And so, all the patients are calling, hearing the words abortion ban. Whether it’s a 15-week ban or the six-week ban, what they hear is abortion ban. And they’re worried it might be illegal. They’re worried they’re going to have to cancel their appointments. And there’s quite a history of that in Texas. As recently as a year ago, when we had the executive order from Gov. Abbott, it did disrupt abortion services in the state of Texas. For upwards of three weeks, it was basically an abortion ban. And so, it’s really present and current for a lot of people in Texas.
And, for many of us, it’s pretty triggering, right? This—clinics are open, clinics are closed; abortion is accessible, abortion isn’t—is unfortunately a real rollercoaster that the communities have been through in Texas. So, it’s been a rough week.
Tammi, you mentioned the ways in which the pandemic has been a further factor in the services you’ve delivered in the past year. And I wonder if you could just talk for a minute about what you’ve had to do differently around COVID and how that’s affected your patients.
Tammi Kromenaker: Our medical director was very, very on top of COVID and the warnings that were coming and the concerns. And, at one point, North Dakota, unfortunately, was leading the nation in COVID cases. And folks here are very libertarian and were saying, “I’m not going to wear a mask.” But when you are running the only clinic, you get to dictate the rules to patients and they have to follow those rules in order to get their abortion care.
So, we’ve drastically changed how we deliver the care. A lot of independent clinics talk about trying to be as efficient as they can and as patient-centered as they can. And we thought we were. But then, when the pandemic hit, we learned that we actually could do it better.
Things like doing more pre-appointment phone calls to explain the procedure, cutting down on the time that the patient is in the clinic, which is a patient’s most paramount worry. They have to travel four, five, or six hours one way to get to our clinic and that’s time off of work and dealing with day care. So, just doing pre-appointment phone calls, cutting down on time that patients are in the building, all the PPE that staff are wearing and patients are wearing, and for a while restricting in-clinic suction procedures because the medication abortion allowed us to see patients quickly, get them through the building in a more efficient manner.
But then the hardest thing for patients, in regard to medication abortion was—usually again, when you’re seeing patients from so far away—you provide the aftercare by some blood tests that they get in their community at home. Well, we’re thinking we don’t want to send them into a clinic in their community at home. They might not be able to go there. They might not be able to get that blood draw. And you don’t want to be sending people into health care centers, which might be dealing with COVID outbreaks.
Then we do see a fair number of Native American patients at our clinic. And working with some of those folks who had reservation curfews, the nonability to even leave the reservation, and having to work with some organizations that could help advocate for those patients so that they could get off the reservation to come to their appointment, and then dealing with the confidentiality of that.
It’s just been a lot. There’s been good. There’s been not so good. But I think overall we’ve been able to continue to deliver the care that patients need. We didn’t miss a step.
Amy, you mentioned the six-week ban in Texas. And I said in my intro that it has this provision that allows anyone and everyone to sue anybody and anything that is implicated in helping someone get an abortion. Can you talk briefly about how rare that is and the implications for you as a provider?
Amy Hagstrom Miller: This is a new strategy by the anti-abortion movement to get a six-week ban to stick somewhere. Because the six-week ban is blatantly unconstitutional. And so, this is a strategy for them to see if they can have it actually take hold. Because, in the past, they have had the state as the enforcer of the six-week ban, which has allowed abortion providers to bring a lawsuit and get an injunction to block it from going into effect. So here, what they’ve done is they’ve created this private cause of action where any random citizen—and I like to think of the protesters out on the sidewalk outside of the clinic—can bring a lawsuit and can make a claim that abortions are being provided illegally, according to their impression. So, people without any legal training, without any medical training, with very biased political leanings can file lawsuits.
In some ways, on the legal side, what this does is it makes who do we sue in order to block this from going into effect a moving target. It’s very challenging for the best and brightest reproductive rights attorneys to figure out, OK, how can we block this from going into effect? What is the mechanism for doing that?
And, unfortunately, it gives the anti-abortion folks another tool, and a scary tool, that’s connected to criminal penalties and a fine to use to continue their disruption, their terrorism, their harassment, and their surveillance of abortion providers and of people who help people get access to abortion services. So, we’re talking about clinic nurses, clinic staff. It’s written so broadly that it can mean anybody who helps somebody get access to an abortion, like, the Uber driver who brings the patient to the clinic, the doctor who refers to Whole Women’s Health from a different medical practice, somebody’s faith leader who they may go to for consult, an abortion fund who might help somebody pay for their abortion.
For some people that seems sort of abstract and random, but for us, it’s super obvious what’s going to happen because we already have a system that’s invisible to the public where anti-abortion folks make use of the regulatory system to police and harass us already. They file false claims. They make crazy accusations. And they use the different governing bodies to try to disrupt services in the clinics, to trigger inspections where we have to prove that the things they accused us of aren’t actually true. We’ve had these things happen. Protesters in Fort Worth accused us of not complying with COVID regulations and social distancing, and it triggered health department inspectors to come in and go through our whole processes. Even if we are excused from these accusations, even if we prove that none of them are actually true, which always happens, the way it puts the staff on the defensive, the way you feel surveilled, the way you feel harassed and accused creates this really incredible work environment.
We’ve had protesters accuse us in Fort worth of not having a water heater that was large enough to be adequate for the number of chairs in our waiting room. Sounds nuts. We were closed for three days while we had to get inspected by the city and prove that, actually, the water heater was adequate. They will stop at nothing to try to stop abortions from being delivered safely in the clinics in Texas by any means necessary. And this gives them not only another tool to use, but one that really ratchets up the fear and intimidation and has a $10,000 fine attached to it. And it can be for anyone—a mom, a boyfriend, a best friend—anyone who helps someone seek an abortion.
Actually, the way the law is written it says someone who aids and abets in the commitment of an abortion. So, already they’re framing abortion as a crime. Instead of saying, “providing abortion,” they’re saying, “commit an abortion.” And I think we have to pay attention to this language and this framework that they’re using.
What I’m really struck by is the way in which, in constitutional law land, this was an earthquake week. And yet, I’m hearing weariness in both of your voices. Both of you just see this as another zig or zag in a decadeslong effort to shut you down by whatever means necessary, to incrementally chip away at how many people can see you and for what. I wonder if you can tell me how much of this registered as the beginning of the end and how much it registered as more of the same.
Tammi Kromenaker: It does feel like it’s the continual onslaught of chipping away. We’ve done the six-week ban. We’ve done this ban. We’ve done that ban. We’ve been in constant litigation for probably … I think the doctor and I determined we had a one- to two-year break at one point. But otherwise, we’ve been in constant litigation, as has Amy, for the last decade or so against these restrictions.
And the bottom line is patients still need the care. They still want an abortion. They still need an abortion. But we are plucky, independent providers who will do our best to continue to provide the service in whatever hostile manner and space that we need to because we talk to these patients. We know what they need. We’re going to keep on fighting and we have to because we know it’s what the patients need and want. So, yeah, I’m tired. I’m burnt out. But I keep going and the patients keep me going.
Amy Hagstrom Miller: There’s nobody you’re going to find in life that’s more resilient or innovative than an independent abortion provider in the Midwest or the South. And that’s our curse, that we continue to find ways to stay open, to do what I call “loophole archeology” and try to find these paths. And it really comes from our deep commitment to human rights and justice, which brought most of us to this field. And that we’re so committed to providing abortion care services.
It’s important to note that these laws don’t do anything to change the need for abortion. There’s no strategy here to reduce unplanned pregnancy. What’s happening here is that they’re just cutting off people’s access to safe abortion care services from trained medical professionals. The arc of justice is incredibly long, but I look at how out-of-step these laws are with the public beliefs of the majority of people in this country. And the pandemic has really shined a bright light on the essential health care that abortion care services are, and all the reasons people need abortion care services are even more poignant during this pandemic. People have lost their jobs. They’ve lost their health care. They don’t have child care. Their kids are home. They’re not in school. It’s created this opportunity for compassion and empathy where people can see health care disparities in ways that they were blind to in the past. And people understand that sometimes things happen to you and you deserve our compassion and our care and not our judgment.
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And so, I have some hope that they have gone too far here. They are the minority, but they are in power. Look at the people who stood behind Gov. Abbott when they signed the six-week ban. Look at the law we just had to challenge in Indiana that requires us to tell every single patient that abortion can be reversed. It’s nuts. If—I should say when—we figure out a way to challenge SB 8 at Whole Women’s Health, working with the Center for Reproductive Rights, it will be our sixth current lawsuit. This litigation strategy is part of the work as an abortion provider in this country. It’s a lot of work. It’s real different than health care. It’s super intense human rights work, but it is the work of our time. And it is the commitment that we have made, because when we can see tangibly the effect that we have on somebody’s life, on really making their ability to choose a course for their life and affirming their autonomy, and their freedom, and their quality, it’s everything.
To hear their entire discussion, as well as a conversation with Vox’s Ian Millhiser and Sen. Sheldon Whitehouse about the courts and democracy, listen below, or subscribe to the show on Apple Podcasts, Overcast, Spotify, Stitcher, Google Play, or wherever you get your podcasts.
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