If the Supreme Court reverses Roe v. Wade, states could set their own rules about abortion. Some states already have closed clinics, and for those that remain, they’ve added obstacles – such as collecting personal data about people who get abortions and declaring that fetuses have civil rights from conception.
First, Type Investigations’ Ashley Cleek takes us to Arizona, where state law requires that clinics ask people seeking abortions why they want the procedure. The answers are part of a wealth of personal data Arizona and other states collect from people who get abortions. Abortion opponents say this information helps them offer support to pregnant people, but there’s little evidence of policy changes based on this data.
Next, we hear how opponents of abortion have co-opted the language of civil rights, including the Black Lives Matter movement. Host Al Letson talks with Mississippi state Sen. Joey Fillingane about a law he pushed through over the summer, banning abortion if the mother does not want a child of a certain race or other factors. Michele Goodwin, a University of California Irvine law professor and founding director of the Center for Biotechnology and Global Health Policy, explains America’s long history of policing the reproductive choices of Black women.
Finally, Reveal’s Emily Harris looks at the growing impact of “fetal personhood” laws. When a fetus is entitled to legal rights, that reduces the legal rights of the pregnant person – which has resulted in some women being charged with crimes when they miscarry or deliver stillborn babies.
Listen: Reproducing racism
Listen: Her own devices
Read: More Type Investigations reporting on reproductive rights
Reported by: Ashley Cleek, Emily Harris
Produced by: Neroli Price
Edited by: Emily Harris, Taki Telonidis
Production manager: Amy Mostafa
Production assistance: Brett Simpson, Najib Aminy
Sound design and music by: Jim Briggs and Fernando Arruda
Mixing: Claire Mullen
Special thanks: Byard Duncan; Mary Retta and Sarah Blustain of Type Investigations; Mississippi Public Broadcasting
Episode art: Molly Mendoza
Digital producer: Sarah Mirk
Executive producer: Kevin Sullivan
Host: Al Letson
Support for Reveal is provided by the Reva and David Logan Foundation, the John D. and Catherine T. MacArthur Foundation, the Jonathan Logan Family Foundation, the Ford Foundation, the Heising-Simons Foundation, Democracy Fund, and the Ethics and Excellence in Journalism Foundation.
Reveal transcripts are produced by a third-party transcription service and may contain errors. Please be aware that the official record for Reveal’s radio stories is the audio.
Al Letson: Hey, hey, hey. It’s Al here and, if there was ever a year that needed investigative reporting, my friends, 2020 is it. A global pandemic, inequality, racism, and threats to the very core of our democracy. On top of all of that, since 2008, newsrooms across the country have been decimated, laying off close to a quarter of their staff. Not only is journalism struggling, it’s been under attack. At Reveal, we tell stories that no one else is telling and we do it with heart and soul. Our reporting changes laws and lives. That’s why we’re asking you to support our brand of investigative journalism. It’s expensive and we can’t do this work without your help. Be a part of a movement that has made people’s lives better this year with facts. From now until the end of 2020, if you donate at least $11 a month, you’ll receive our FACTS t-shirt and your contribution will help make this work possible. Just text the word REVEAL to 474747. Standard data rates apply and you can text STOP at any time. Again, to support the work we do, just text the word REVEAL to 474747. And, remember, the only way forward is together.
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Al Letson: From the Center for Investigative Reporting and PRX, this is Reveal. I’m Al Letson. Allan Parker is a lawyer who is watching the new Supreme Court closely.
Allan Parker: I believe that the Court is probably one to three years away from reversing Roe v. Wade.
Al Letson: He’s filed a brief in a case the Court is considering that could come awfully close. It’s a Mississippi law that would ban abortion after 15 weeks of pregnancy. Parker heads a group called The Justice Foundation. He wants Roe to overturned and he’s been working at for years.
Allan Parker: What you really need is to win in the court of public opinion, you need to win in the legislature, and then you need to win in the actual courts.
Al Letson: Parker thinks abortion opponents can now win at the Supreme Court because it tipped to the right with Donald Trump’s three appointments. He argues that options for pregnant people have changed because of a new kind of law.
Allan Parker: The safe haven law in all 50 states says that a woman can simply drop her baby off at a hospital or fire station within a certain period of time after birth. The essential freedom of Roe was freedom from unwanted childcare.
Al Letson: For the lawyer who argued to legalize abortion almost 50 years ago, it was much more than that.
Sarah Weddingto…: Mr. Chief Justice [inaudible 00:03:25] the court.
Al Letson: Sarah Weddington spelled out for the nine male justices what it means to be pregnant.
Sarah Weddingto…: Pregnancy to a woman is perhaps one of the most determinative aspects of her life. It disrupts her body. It disrupts her education. It disrupts her employment. And it often disrupts her entire family life.
Al Letson: Weddington said, “A woman should be free from government interference when she decides whether or not to give birth.”
Sarah Weddingto…: This certainly, in as far as there are any rights which are fundamental, is a matter which is of such fundamental and basic concern to the woman involved that she should be allowed to make the choice as to whether to continue or to terminate her pregnancy.
Al Letson: The Court’s ruling in 1973 was huge news.
Speaker 5: The Supreme Court ruled that abortion is completely a private matter to be decided by mother and doctor in the first three months of pregnancy. The 7-2 ruling to that effect will probably result in a drastic overhaul of state laws on abortion.
Al Letson: That was a good prediction. It did. Most states did not allow any abortion before the Roe decision. All of a sudden, abortion before a fetus was viable became legal in all 50 states, but the justices left plenty of room for states to regulate abortion in incremental ways. And they did. Including, over time, collecting detailed, intimate information about each termination and the person getting it. Oklahoma’s health department, for example, keeps a copy of every sonogram taken of a pregnancy at abortion clinics. Missouri, for a while, made a spreadsheet of women’s periods. No other patients are treated this way, so who is benefiting from all of this personal information that’s being collected? Reporter Ashley Cleek’s investigation starts in a clinic waiting room.
ashley cleek: It’s Thursday afternoon at Camelback Family Planning in Phoenix, Arizona. All the chairs in the waiting room are full.
Speaker 7: We’re going to have you go through the door, so we can schedule your follow-up and take payments.
ashley cleek: A woman with pink hair holds a toddler. A 17-year-old in a racer back tank top and running shorts sits next to a mom. Another woman, who looks to be in her 20s, sits close to a man in a floppy hat.
Speaker 7: Do you want morning or afternoon?
ashley cleek: This is a small private practice. One of five abortion clinics in Phoenix, a city that’s home to more than 600000 women of childbearing age.
Gabrielle Goodr…: So, a tour?
ashley cleek: Yeah.
Gabrielle Goodr…: So, a tour.
ashley cleek: Dr. Gabrielle Goodrick owns and runs this clinic. She started out in family practice. Now, she primarily does abortions.
Gabrielle Goodr…: Basically, it’s a family medicine office that I kind of made into an abortion clinic.
ashley cleek: How many years ago?
Gabrielle Goodr…: In 2006, we moved in here.
ashley cleek: It looks like every normal doctor’s office I’ve ever been to.
Gabrielle Goodr…: Yeah, it’s just a doctor’s office.
ashley cleek: Dr. Goodrick has been doing abortions for over two decades. In that time, the procedures have changed a little, but as in many states, the rules have changed a lot. Here in Arizona, the legislature started pushing through a lot of abortion regulations about 10 years ago.
Gabrielle Goodr…: Boom. It was just relentless. Pretty much, every six months to a year, we had new regulations.
ashley cleek: New regulations meant that Dr. Goodrick had to buy new, expensive equipment. She had to add an extra appointment for each patient for mandatory counseling with a 24-hour wait in between. After a state law passed saying only licensed doctors can perform abortions, including handing patients pills for a medical abortion, Dr. Goodrick had no use for her nurse practitioner. About 10 years ago, the state started to ask for data on abortions.
Gabrielle Goodr…: How many take place in the state, what age group, and looking at those kinds of numbers maybe important.
ashley cleek: Goodrick is also required to tell the government which staff members help with each procedure and give detailed information about each patient. All of this is relatively new in Arizona.
Gabrielle Goodr…: And then when they started requiring it, then it just snowballed. Not just simple demographics of age. Maybe county, gestation, type of abortion. Marital status. Just all kinds of data. Why they want to do it.
ashley cleek: Dr. Goodrick says all of these regulations have taken a toll. In 2011, there were 15 abortion clinics in Arizona. Now, there are nine.
Rose: I hope you’re getting good information for your story.
ashley cleek: The head nurse in this clinic is a woman named Rose. Rose asked us not to use her last name because she doesn’t want to be harassed. All day, Rose pivots between patients and paperwork.
Rose: I mean, can you imagine the stories that we hear all day, every day? We’re stuck to deal with all this crap.
ashley cleek: Right now, she’s stapling documents and checking over patients’ forms. Much of this information will eventually get uploaded to the state Department of Health. On the wall by her desk is a framed cross stitch that spells out her motto in black lettering.
Rose: Do no harm, but take no shit.
ashley cleek: I walk with Rose across the hallway to a lab, where she picks up a plastic container of pee.
ashley cleek: Are you doing a pregnancy test?
Rose: Yeah. All right. She’s two seconds pregnant.
ashley cleek: The patient, Rebecca, is in an exam room down the hall.
Rebecca: Well, I broke up with my boyfriend and then, about a week later, I found out I am pregnant. Maybe four or five weeks along.
ashley cleek: For privacy, Rebecca asked just to use her first name. Rebecca’s 19. She has long, platinum blonde hair that falls over his shoulders and a thin, silver loop through the left side of her nose. Her eyes look tired. Those test results confirm what Rebecca already knows. She’s been obsessively repeating pregnancy tests and, by this point, she’s taken nine.
Rebecca: They all came out positive. I took one this morning. Took one at another clinic. Yeah. I wanted to be sure before I made any type of decision.
ashley cleek: When Rebecca got here, she expected to provide some information. Like at any doctor’s office.
Rebecca: Just like my general information. I had to sign a bunch of things. Like, you’re going to be seen by the doctor. This is what they’re going to tell you. My consent form.
ashley cleek: But then the questions started going beyond her health and consent. By law, the clinic needs to ask her race, level of education, and whether or not she’s married. One form asks why she decided to have an abortion.
Rebecca: Oh, that made me want to just scream. Don’t ask me my reason. It’s none of your business.
ashley cleek: This is part of Arizona’s newest abortion law, passed in 2018.
Rebecca: You want me to check a box why I’m having an abortion? No. I can’t just put my life in a little line in a box and click check. That’s not who I am.
ashley cleek: The form has boxes to check next to possible answers. Are you having an abortion for your emotional health? Because of incest? Rape? Relationship issues? Rebecca says none of these reasons explains her decision.
Rebecca: It wasn’t just one decision why I’m having it. It’s not my mental health or money. There are so many reasons and they will never understand why each and every woman has an abortion. Because everyone has a different story.
ashley cleek: Since the early days of legal abortion, government agencies have collected some basic data. Mary Ziegler, a professor at Florida State University who specializes in abortion history, says researchers did not have good data on abortions back then and they had real questions.
Mary Ziegler: Whether abortion, when performed legally, was safe or not. Whether the states that had changed their laws were seeing better health outcomes.
ashley cleek: Back in those early days, the federal government tried to standardize abortion data and treat it like any other public health information around pregnancy.
Mary Ziegler: Like miscarriage data or premature delivery data.
ashley cleek: The Centers for Disease Control made a form and asked doctors to report each abortion.
Mary Ziegler: To compare that from state to state and country to country.
ashley cleek: Abortion opponents read the data, too. Some wanted to amend the Constitution to ban abortion after Roe v. Wade.
Mary Ziegler: But the movement recognized that that was going to take time.
ashley cleek: So, opponents concentrated their efforts on lobbying states, pushing for more incremental changes like waiting periods and spousal notification. According to many activists, it’s because of these state efforts that data collection ballooned.
Mary Ziegler: You began to see data collection and recordkeeping requirements written into big abortion restriction legislation. Those obviously had a different kind of agenda behind than some of the earlier data stuff we had been talking about. Partially, I think, so abortion opponents could make the case that abortion was bad for patients and bad for the country, but also so that abortion opponents could paint an unflattering picture of who had abortions and why.
ashley cleek: Some states have been asking women why since the 1980s. Now, more than a dozen states require clinics to collect women’s reasons and pass that information on. One state asks whether a woman is HIV positive. Another asks if the reason she wants an abortion is because she’s not married or she’s on welfare. Dr. Goodrick sees no health related reason to ask why.
Gabrielle Goodr…: This is not something any woman in the United States has to justify to any agency, any person, or even myself. If they want to talk to me about their reasons and they want to get that off their chest or they need someone to talk to, fine, but I don’t care why you’re getting an abortion, okay? You’re here. You have a legal right to get it under a certain gestation. The state doesn’t ask people why they choose to have a child.
ashley cleek: In the clinic, facing the question why and the list of possible answers, Rebecca found one option that felt okay.
Rebecca: I checked it’s none of your business. I declined to answer. It’s not the state’s business. It’s not the doctor’s business. It’s not even my friends’ business. It’s my body. My decision. My life.
ashley cleek: Rebecca wants to know who thinks her reasons are their business. The answer, at least in Arizona, is Cathi Herrod.
Cathi Herrod: [inaudible 00:13:59] Hello?
ashley cleek: Hi!
Cathi Herrod: This is Cathi. Is this Ashley, I assume?
ashley cleek: Oh, great! Yes, this is Ashley. Hi, Cathi. How are you?
Cathi Herrod: Good!
ashley cleek: Cathi leads the Center for Arizona Policy, a conservative lobbying group that she describes as a Christian evangelical organization. Elected officials shower the group with love and promotional videos.
Trent Franks: Center for Arizona Policy has courageously stood up and said that we’re going to be a voice for the unborn and we’re going to-
ashley cleek: Trent Franks was one of the strongest anti-abortion members of Congress for years.
Kimberly Yee: There is one team here at the state capital who we can also count on and they are the Center for Arizona Policy team. They are here-
ashley cleek: Former State Rep., Kimberly Yee, is now State Treasurer.
Kirk Adams: They’re the ones that, on a day to day basis, will track us down in the halls, send us an email, call us on the phone, meet with us, to explain the issues to us, make sure-
ashley cleek: Kirk Adams was Speaker of the Arizona House when he said this. Later, he served as a top aide to the current governor. Cathi started pushing abortion regulations in Arizona about a decade ago. At the time, a Democratic governor who vetoed several bills restricting abortion had just left office. Even with a consistently Republican legislature, Cathi felt that Arizona had fallen behind many other states. The state didn’t even require clinics to count the number of abortions, so that was the first law Cathi got passed.
Cathi Herrod: Before the first abortion reporting law in Arizona, the numbers were all over the place. You really didn’t know what was happening with abortion in Arizona or how to meet the needs of women or what was really going on.
ashley cleek: Remember that series of new abortion regulations Dr. Goodrick called relentless? Cathi Herrod and her organization pushed hard for them. The 24-hour waiting period. The ban on nurses performing abortions. The mandatory ultrasound. Cathi says her bottom line is to help women. To quote, “meet their needs,” is the way she often puts it. For example, she says patients deserve to see a doctor in person. So, in 2011, she got a bill passed that bans telemedicine for anything related to abortions. For a patient, that means two visits to a clinic. One for state-mandated counseling, another for the procedure. Then, the year before Rebecca got an abortion, Cathi proposed that anyone seeking one in Arizona must tell the government why.
Cathi Herrod: Obviously, if you want to try to reduce the number of abortions or better meet the needs of women, if you know why they are having an abortion, then you obtain the data to be able to help meet the needs of women.
ashley cleek: Cathi’s group wrote a bill, got it on the legislative agenda, and then testified in support.
Eddie Farnswort…: Okay, we have Cathi Herrod. Welcome. You have two minutes.
Cathi Herrod: Thank you, Mr. Chairman. Members of the committee, thank you for hearing this bill. As a woman and a-
ashley cleek: Daniel Hernandez is a Democrat on the committee.
Eddie Farnswort…: Mr. Hernandez.
Daniel Hernande…: Thank you, Mr. Chairman. Ms. Herrod-
ashley cleek: He asked if knowing why women get abortions would lead to policies that reduce unwanted pregnancies.
Daniel Hernande…: So, if this were to be put into effect and the data that showed one of the reasons why women were seeking abortions was lack of access to affordable and accessible birth control, would you be supportive of making sure that women have, let’s say, a 12-month prescription instead of a one-month prescription for birth control?
Eddie Farnswort…: You can answer this, but this is actually outside the scope of this bill.
ashley cleek: That’s the committee chair interrupting. A Republican named Eddie Farnsworth. Farnsworth received thousands of dollars in campaign contributions from a group associated with Cathi’s organization.
Eddie Farnswort…: Answer quickly and then let’s limit it to the bill, please.
Cathi Herrod: Mr. Chairman, Rep. Hernandez, obviously, we’d have to look at the data. I think it’s a much longer discussion on sex education and access to birth control that’s separate from this discussion.
ashley cleek: And it stays separate. The bill passes along party lines. Besides the why question, it also requires clinics to report any complication, however minor, and the medical specialty of the doctor performing the abortion. The language of this Arizona bill closely resembles a template written by a national anti-abortion group, Americans United for Life. Katie Glenn is a lawyer there.
Katie Glenn: We have always sought to provide lawmakers with information on how to pass good laws. How to pass defensible laws. That’s what AUL attorneys have been doing long before I was even born.
ashley cleek: Americans United for Life is a driving force behind all this data collection. It lobbies states to require clinics to give state health departments detailed information about each abortion.
Katie Glenn: It’s really about understanding what’s going in these facilities. Whether they’re following the law, whether they’re safe, whether they’re sanitary, whether they’re providing informed consent. Reporting information is all about understanding what’s going on inside.
ashley cleek: I asked Katie why she thinks it’s important for the government to track why women have abortions.
ashley cleek: Why ask women why? Why are their reason?
Katie Glenn: Well, I think if we want to understand the motivations that drive women towards abortion, we need to ask the very simple question of why they showed up that day. What is missing that makes them feel like this where they need to be and what they need to be doing?
ashley cleek: But here’s the thing. There’s already a lot of data about why women have abortions. There are surveys from the Guttmacher Institute in 1998 and 2005, a study by the National Institutes of Health in 2017, a data from other states that ask this question. All of this data points to the fact that women have abortions for multiple reasons. The most common reasons given are “I’m not ready for kids,” “I have enough children,” or “I have concerns about money, work, school, or my relationship.” Supporters of abortion access say these reasons show women are evaluating their own circumstances responsibly. But so far, all this data gathering hasn’t changed laws to solve the problems women cite.
ashley cleek: Well, if it’s not going to be used for policy, it’s a private kind of question, so why have to divulge it to the state?
Katie Glenn: Well, I think it’s used for policy less in a we are going to pass this law and more in a what kind of programs are we doing? I think it’s much more providing the information to the public so that, if there are private charities that want to assist women, they understand where the need is greatest and what the need really is. It’s not just about lawmakers. It’s about us understanding, as a whole society, what’s going on here.
ashley cleek: Dr. Gabrielle Goodrick says she knows what’s going on.
Gabrielle Goodr…: I mean, there’s no beating around the bush. They want to ban abortion.
ashley cleek: Anti-abortion groups are trying to do that in many ways. One strategy, says Professor Mary Ziegler, is to use that why question to force the public and lawmakers to judge a woman’s reason to end her pregnancy.
Mary Ziegler: There’s been a longstanding effort since at least the 1980s by anti-abortion people to say essentially that most abortions are for reasons that a lot of Americans would disapprove of or would find frivolous and that, for that reason, most Americans should be less troubled by abortion bans than they might think at first. And, also, I think to set the precedent that abortion isn’t about autonomy or you can make the decision for yourself. It’s establishing a precedent that the state can decide when you do or don’t have a legitimate reason.
ashley cleek: Some states already have. New laws in a dozen states that ban almost all abortions do not include exceptions for reasons like rape or incest, which have been standard for decades. But even though these laws have passed, they can’t go into effect unless Roe v. Wade is overturned.
Al Letson: Thank you to Ashley Cleek and Type Investigations for that story. Reveal is continuing to follow the thread on data collection and we’re looking for people to help. If you had an abortion in the last six years and are willing to talk to us, text MYDATA to 474747 and we’ll get back to you with next steps. That’s MYDATA, all one word, to 474747. You can text STOP at any time and standard data rates apply.
Al Letson: Some states aren’t asking women why they want an abortion just to collect data. In certain situations, they’re using the answers as a trigger to step in.
Joey Fillingane: If they say, well, because the race of the child, the sex of the child, or if there’s some sort of known chromosomal or some sort of physical defect to the child, then of course, this law would not allow that abortion to move forward.
Al Letson: That story next on Reveal.
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Speaker 21: The Black Guy Who Tips is a comedy talk show with the motto, nothing’s wrong if it’s funny.
Speaker 22: It’s hosted by my husband, Rod.
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Al Letson: From the Center for Investigative Reporting and PRX, this is Reveal. I’m Al Letson. In the five decades since Roe v. Wade, anti-abortion activists have taken to the streets to make their case. Protests outside abortion clinics are common.
Speaker 23: Murderer! You’re a murderer! Shame on you!
Al Letson: And, in recent years, anti-abortion campaigns have targeted Black communities. Billboards along roads and highways show pictures of Black children and messages like, “The most dangerous place for an African American is in the womb.” Black people make up about 13% of the US population, but Black women have about a third of all abortions.
Speaker 24: The message is simple. That Black children are an endangered species because of too many abortions in the Black community. The billboard’s idea, that abortion is genocide, has made a comeback in some parts of the Black community.
Al Letson: More recently, activists have borrowed the language of the Black Lives Matter movement.
Speaker 25: The Black lives killed by Black men matter, right? Yes?
Speaker 25: The Black babies killed in the abortions clinics matter, right?
Al Letson: This idea of abortions adding up to a Black genocide is very potent given this nation’s history from slavery to lynchings to mass incarceration.
Michelle Goodwi…: So, when the terminology of Black genocide is used, it taps into a legitimate source of pain.
Al Letson: Michelle Goodwin is a Black woman who’s been writing about race and reproduction for decades. She’s a Chancellor’s Professor of Law at the University of California Irvine.
Michelle Goodwi…: One of the efforts here is to resonate amongst Black people given a history that we know where, within the medical field generally in the United States, there have been harms inflicted on Black people. We know that there was untoward, horrific, terroristic types of experimentation on Black people during enslavement, particularly Black women. It resonates with Black people.
Al Letson: Joey Fillingane knows the power of a phrase like Black genocide. He’s a white Republican lawmaker from Mississippi who, this summer, pushed a bill through the state legislature that requires clinics to ask women why they want an abortion, but it goes one step further.
Joey Fillingane: If the reason you’re seeking an abortion is because of the child’s sex, race, or because of a disability, previously known but prior to birth, you can’t abort because of those reasons.
Al Letson: Joey’s bill passed. Mississippi is now one of six states that have passed abortion bans based on the expected race of the child. Some of these laws have been stopped in court. Like other states, Mississippi bundled race with other reasons, also banning abortions based on the sex of the fetus or a genetic anomaly. But we’re zeroing in on race today because it raises a lot of questions at a time when the nation is grappling with structural racism and inequity. We wanted to understand how state laws like this fit into the anti-abortion movement’s national strategy, so we set up a video chat with Joey.
Joey Fillingane: Does the room sound okay? If not, I can go outside.
Al Letson: And I asked him. When would someone want to have an abortion because of what the baby’s skin color might be?
Joey Fillingane: The example that I would find most reasonable to make in that type of race-based situation would be a mother who would come in, maybe a single mom or somebody like that, and would say, “My child is not 100% pure,” regardless of what the race was, “and my family is not going to be supportive of this. They’re going to be upset with me,” whatever, and would seek an abortion based on that potentiality of race.
Al Letson: We looked and found no data to suggest that abortions based on race are actually happening. Michelle Goodwin hasn’t found any evidence of it either. When I pushed Joey on the issue, he brought up a claim that a lot of anti-abortion advocates make. That Black people are more likely to have abortions because clinics open shop in communities of color.
Joey Fillingane: Why is that? Is that because that’s where the people are so that where the clinic has been located? Or is it because Planned Parenthood and other abortion providers locate intentionally in urban communities and offer that service to poor African American women?
Michelle Goodwi…: Now, that’s really interesting because what Planned Parenthood does… a very small fraction of what Planned Parenthood does… tiny, tiny, tiny… happens to be abortion-related.
Al Letson: Michelle serves on the board of a Planned Parenthood clinic in California.
Michelle Goodwi…: The majority of the services that they provided related to contraceptive care, breast cancer screenings, ovarian cervical screenings, and that… Statistically, we know that’s true. And so when we hear sentiments like that, I think it’s also suggesting that Black women don’t need those things. To the more specific point, this villainization of Planned Parenthood as being the reason why Black women obtain abortions… Well, that just doesn’t actually make much sense. It’s the conditions of their lives. Planned Parenthood is getting Black women pregnant. Let’s just be clear.
Al Letson: Even without clear evidence, Joey and others in the pro-life movement insist there’s a need for laws on the books that ban abortion because of the race of the fetus. On the other hand, his law says nothing about IVF treatments for people who need help to get pregnant. IVF patients can find out the sex and genetic makeup of their embryos, then choose which ones to use. For Michelle, this shows a double standard.
Michelle Goodwi…: So, we’re not interfering with your reproductive choices, wealthier white women in Mississippi. We’re only going to interfere, as has been a historical norm in Mississippi, with the poorest of women in that state. And the reason, Al, that I keep going back to the history is that I think it’s important that we not see this as isolated.
Al Letson: But Joey insists that the law is about protecting the most vulnerable in his state.
Joey Fillingane: Just like the civil rights movement, we wanted to make sure that minorities have the same rights as everyone else. That they weren’t being targeted or discriminated against. We want to apply that same civil right inside the womb.
Al Letson: He draws a parallel between his law and the work of civil rights leader, Fannie Lou Hamer, who in the ’60s, fought for voting rights for Black Americans.
Fannie Lou Hame…: Is this America, the land of the free and home of the brave, where our lives be threatened daily because we want to live as decent human beings in America?
Al Letson: When this bill came up, you talked about Fannie Lou Hamer. Can you walk me through that? Why bring her into the conversation of this bill?
Joey Fillingane: Well, because Fannie Lou Hamer is one of our civil rights in Mississippi history and she actually was the victim of a forced sterilization back in 1961. And so what you had back in the ’60s were instances where Black women, when they went to the doctor to receive needful operations or surgeries, without being told, many African American women were sterilized by the physicians, of course who were white at the time. Of course, she spoke out about that in terms of civil rights. That white women, obviously, would never be treated that way, but African American women in Mississippi were treated that way.
Al Letson: What you’re talking about with Fannie Lou is really different from abortion. Like, what happened with Fannie Lou Hamer was horrible. It was a forced sterilization that was done without her consent. What’s happening in Mississippi with Black women going to get abortions is that they are opting to do this surgery. That they have full agency to make the decision over their bodies. And so it’s like two completely different things that you’re wrapping into one. I would also that Fannie is revered because she fought for the right for Black people in Mississippi, throughout the country, to be able to vote. If you think about it, voting is really about choice. I don’t want put words into Fannie Lou Hamer’s mouth, but I would say that someone who works as an advocate to give people choice… I find it unlikely that she would be for a bill that was about taking choice away from a Black woman.
Joey Fillingane: Well, I guess it depends on which Black woman you’re talking about. Is it the mother that’s seeking the abortion or is it the Black unborn child that is being aborted?
Al Letson: For Michelle, twisting civil rights history into Joey’s law is a part of a wider strategy to broaden the anti-abortion movement.
Michelle Goodwi…: It’s a convenient playbook because it’s a never playbook that’s like, we apologize. Let’s have a truth and reckoning. Look at what we did. We are so sorry in what we did to you. It’s never that. But instead it is then this rhetoric around abortion.
Al Letson: She says this rhetoric and the laws it inspires have been key in limiting access to abortion.
Michelle Goodwi…: Because the anti-abortion movement is one that, while we’ve seen the efforts to do away as a whole, for the most part, the playbook has been to chip, chip, chip, chip away such that Roe v. Wade doesn’t need to be overturned. Instead, there will be the million blows and strikes where the right essentially becomes meaningless for the majority of Americans who don’t live in New York or California or can’t get in a plane to go to Mexico or Canada.
Al Letson: Abortion opponents don’t just want to chip away at Roe. They hope that as these laws get challenged, one of them will go all the way up to the nation’s highest court.
Al Letson: So, the US Supreme Court had a chance to hear a case about this from Indiana, but they let a ruling stand that tossed out the ban on abortion based on race. Do you hope the Supreme Court will have another go at this
Joey Fillingane: I would love that, but we have been arguing for all along… those in the pro-life community… is that this ought to be a state by state decision. We’re not claiming that all abortions should be banned outright. We’re just simply saying that the Roe v. Wade put a one size fits all across the whole country ought not to be the case.
Al Letson: The argument you just made was that this is basically states’ rights. Whenever I hear states’ right, it sets off an alarm bell to me. Because, I mean, at the root of the states’ rights question comes slavery. The idea that different states can put different values on different lives and that what the federal government is supposed to do is maintain a fair balance for everybody.
Joey Fillingane: I understand the argument and you’re going to continue having that, I think, until and unless the Supreme Court says, look, back in 1973, we overstepped. This is really an issue better reserved for the states and we’re going to let 50 states determine… the territories determine how they want to handle this particular issue of when life begins and do the rights of the mother outweigh the rights of the unborn or vice versa. I think it’s a very sticky issue and I certainly don’t envy the judges or justices that will be hearing these cases.
Al Letson: That’s state senator Joey Fillingane from Mississippi. We also spoke with UC Irvine law professor, Michelle Goodwin. Our story was produced by Neroli Price. This idea of whose rights matter more, the mother’s or the fetus’, isn’t just about abortion and, as courts weigh in on it, there can be big consequences for pregnant people.
Speaker 29: We have cases of women being arrested for falling down steps during pregnancy. Women being arrested for smoking marijuana during pregnancy. Women who’ve been charged with murder because they’ve had a stillbirth.
Al Letson: That story next on Reveal.
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Byard Duncan: Hey, folks. I’m Byard Duncan.
David Rodriguez: And I’m David Rodriguez.
Byard Duncan: We’re reporters at Reveal and we’re investigating problems with the 2020 census. We recently uncovered a pattern of poor training, shifting deadlines, and clunky technology that produced chaos on the ground as the census came to a close.
David Rodriguez: Workers across the US are raising doubts about the accuracy of the information they collected and expressing worry about how it may affect government funding and political representation.
Byard Duncan: We’ve heard from over 120 census workers so far and we’re looking to hear from even more.
David Rodriguez: If you worked for the 2020 census and want to share your experience, text the word CENSUS to 474747.
Byard Duncan: Standard data rates apply and you can text STOP at any time. Again, text the word CENSUS to 474747. Thank you.
Al Letson: From the Center for Investigative Reporting and PRX, this is Reveal. I’m Al Letson. When people like Mississippi state senator Joey Fillingane talk about the rights of unborn children, they’re talking in terms of abortion. And as the concept of fetal rights has grown, so have increasingly severe restrictions on abortion in many states. But constitutional rights for fetuses don’t just come into play for people seeking an abortion. Reveal’s Emily Harris winds the clock back 33 years to a situation that has nothing to do with abortion, but helps us understand how fetal rights laws, if they’re upheld in courts, may change the lives of pregnant people who want to keep their babies.
emily harris: It’s a warm, pleasant day in New York City, mid-June, 1987, when [Lynn Paltrow 00:39:11] phone rings.
Lynn Paltrow: I got a call from a judge’s chamber in Washington, DC saying we have this case. We might need you to help.
emily harris: Lynn is a young lawyer. She’s working for the ACLU. Mostly, she fights laws that restrict a person’s right to abortion, which is still pretty new. It’s only been 14 years since the Supreme Court decided Roe v. Wade. This case is different. Administrators at George Washington University Hospital want a judge to order a caesarian section on a pregnant woman.
Lynn Paltrow: I spent the day on the phone as an emergency hearing was called to determine what rights the fetus inside of her had.
emily harris: Because the woman doesn’t want the operation.
Lynn Paltrow: Her name was Angela Carder. She’d been critically ill with cancer, survived, went into adulthood, got married, got pregnant. She had had an entire leg and half her pelvis removed. She wanted to be pregnant… this was not an abortion case… but when she was 26 weeks pregnant, she had a recurrence of the cancer and she was very, very ill.
emily harris: The court records suggests that Angela wants to stay alive as long as she can, but word about her condition gets around the hospital.
Lynn Paltrow: When a neonatologist heard that she was 26 weeks pregnant and they were exploring what they could do to keep her alive, the neonatologist, without talking to Angela, her parents, or her doctors, ran to the hospital lawyer and said, “I can save all 26 week fetuses. This fetus has a right to life. We should cut her open right now.”
emily harris: The hospital goes to court. A lawyer is appointed for the fetus.
Lynn Paltrow: And the lawyer for the fetus essentially argued she’s going to die anyway. The fetus has a right to life. Your honor, you should order the hospital to perform caesarian surgery on her.
emily harris: That lawyer prevails. The judge orders the hospital to try to deliver the baby by doing a C-section on Angela.
Lynn Paltrow: But when her attending physicians, who she loved and trusted, came to her and said, “It’s been ordered that you should have this surgery. You know it could kill you,” she mouthed, “I don’t want it done. I don’t want it done.”
emily harris: The hospital starts surgery prep anyway. Angela’s lawyer files a legal appeal. But the appeals panel says no. They order the surgery. The baby is born. Alive.
Lynn Paltrow: Born alive, but died within two hours because it was not viable. It was never going to live. It had been deprived of oxygen because of a tumor in her lungs. And Angela died two days later with the caesarian surgery listed as a contributing factor. That clarified for me the extent to which anti-abortion arguments are dehumanizing. It’s a case that reveals that the pro-life position is pro-life for everyone except pregnant women.
emily harris: In the five years or so before Angela Carter died, court ordered C-sections had been documented in several states around the US. For a variety of reasons including when doctors thought it was vital but surgery went against the pregnant person’s religious beliefs. With that backdrop, Angela’s case triggered national attention.
Joan Lunden: It is an issue that’s becoming a medical and legal nightmare. Courts forcing pregnant women to undergo surgery to protect their unborn children.
emily harris: This was the 1980s. Joan Lunden hosted Good Morning America then.
Joan Lunden: And joining us this morning, Angela’s parents, Daniel and Nettie Stoner. Mr. Stoner, neither you nor Mrs. Stoner or Angela’s husband or the doctors, her own doctors… None of you wanted the surgery.
Daniel Stoner: No, nobody did.
Joan Lunden: And what did Angie say when she was told-
Daniel Stoner: Angela didn’t want the surgery either. She was, I imagine, under the impression they were going to treat her for cancer. Radiation or chemotherapy.
Joan Lunden: When they had the hearing, was the judge told that this surgery would possibly shorten Angela’s life or possibly cause her to die?
Nettie Stoner: Oh, yes. He was told. He was told.
emily harris: When Angela and her parents went through this ordeal, the concept of fetal rights was not a common idea. Since then, anti-abortion activists have pushed hard to move it towards the mainstream. I wondered how Angela’s experience would sound to one of those activists now.
Catherine Davis: I’m having difficulty conceiving a court forcing her to do a C-section.
emily harris: Meet Catherine Davis. She runs The Restoration Project that she describes as a pro-life, pro-family, pro-education organization working to strengthen Black families. Catherine was in her 30s and just out of law school when Angela’s case hit the headlines. She doesn’t remember catching the story, but as I describe it to her, she decides the judges were right to order a C-section on Angela.
Catherine Davis: If you can save one of the lives, then save the life. Because she was going to die anyway. This is the issue, I think, that most of us should answer for ourselves today. Because it is the life of another person. And whose life trumps the other life? Whose life is the greater life, if you will?
emily harris: Catherine asks this question a lot in her work. Attending conferences, testifying in front of lawmakers. Ending abortion is her passion and it’s personal.
Catherine Davis: I had two abortions myself. And I was like Scarlett O’Hara. I’ll think about that tomorrow.
emily harris: Her first surprise pregnancy happened in college, the second in law school, and she says she didn’t think about either abortion until a lunchtime Bible study years later. The topic was abortion. Her feelings overwhelmed her.
Catherine Davis: The shame of the decisions that I had made came crashing. The guilt. Because I knew I had taken the life of another human being. It was something that I had never processed through the front part of my brain. I mean, I knew it was in there, but it was on the shelf so I didn’t have to deal with it. I didn’t have to address it in a personal way to say, girlfriend, you were selfish.
emily harris: Research shows that the vast majority of people who have abortions, 95% feel afterward that it was the right decision for them. But Catherine didn’t feel that way and she embraced her pastor’s help.
Catherine Davis: And that began my journey to speak against abortion.
emily harris: On May 7, 2019, that journey took her to a ceremony in Atlanta, Georgia, where Governor Brian Kemp was about to sign one of the most restrictive abortion laws in the country. Catherine had pushed for the law, promoted it, and now stood right behind the governor.
Brian Kemp: I’d like to thank you all so much for being here with us this morning.
emily harris: In news videos, you can see Catherine over his left shoulder as he speaks.
Brian Kemp: The life fact is very simple, but also very powerful. A declaration that all life has value, that all life matters, and that all life is worthy of protection.
emily harris: Catherine also spoke at the ceremony.
Catherine Davis: This is a historic day for Georgia.
emily harris: She celebrated what she saw as the restoration of fetal rights.
Catherine Davis: This governor is standing, restoring somewhat protection for a class of people who had their protections stripped from them in Roe v. Wade.
emily harris: Georgia outlawed any abortion done after about six weeks of pregnancy. That’s before many people even realize they are pregnant. The law also gives fetuses at that stage of development, quote, “full legal recognition,” letting parents claim tax deductions for the embryos and count them as part of Georgia’s population. Half a dozen states passed similar laws the same year as Georgia. All have been challenged and are on hold right now as they make their way through federal courts. Attorney Lynn Paltrow is watching them closely.
Lynn Paltrow: It’s sort of shocking that state after state can pass laws that in various ways seek to establish separate rights for fertilized eggs, embryos, and fetuses without every mentioning the pregnant woman.
emily harris: Lynn began to focus her work on the rights of pregnant people after Angela’s case back in 1987. After Angela died, Lynn helped her parents appeal the court-ordered C-section. They won. Washington, DC’s highest court said the hospital had been wrong. Lynn went on to start a new organization, the National Advocates for Pregnant Women. It’s focused on the rights of pregnant people in any circumstances, whether they’re seeking abortions or not.
Lynn Paltrow: Because the anti-abortion movement, for many, many years, has insisted that they are trying to protect women and that the only people who would be punished under their laws are doctors, but National Advocates for Pregnant Women has been involved in numerous cases in which women have been arrested and charged with feticide and murder.
emily harris: Here’s a case from Alabama, two years ago.
Speaker 41: A pregnant woman shot in the stomach, now facing possible manslaughter charges for the death of her fetus. The shooter not charged in this case.
emily harris: According to court documents, a woman who was five months pregnant had a confrontation with another woman in a mall parking lot. The second woman fired a gun. The bullet hit the pregnant woman in the stomach and her baby died. Authorities accused the pregnant woman of starting the fight and a grand jury indicted her for manslaughter of her fetus. Then, the district attorney quickly dropped the case, saying it was not in the best interest of justice. It had been all over talk radio.
Speaker 42: I just don’t understand the logic behind the woman who gets shot, the woman who was hospitalized because she got shot, the woman who loses the baby because she got shot… She gets charged! With what?
emily harris: Catherine Davis, who lobbied for Georgia’s fetal rights law had heard about this shooting back when it happened. She brought it up when we were talking.
Catherine Davis: I read a case, a news story, of this woman was pregnant who deliberately started a fight with another woman-
emily harris: I think I might’ve read the same story.
emily harris: I asked Catherine whether criminally charging a pregnant person who got shot for the death of her own fetus made sense to her.
Catherine Davis: It did make sense to me. Do you see? Because she recklessly engaged in behavior that put her child’s life in danger.
emily harris: What, if anything, do you think a woman should be criminally charged for who’s pregnant?
Catherine Davis: Well, I think women who drink and drug while they’re pregnant… They should have some responsibility for the outcome.
emily harris: Like jail time?
Catherine Davis: It could be jail time, but there should at least be some kind of penalty. I’ve not thought about it all the way through to suggest what that penalty should be.
emily harris: Jennifer Johnson did not get jail time. Instead, she got house arrest and then 14 years of probation. She was addicted to cocaine and was charged and convicted of delivering drugs to her newborn daughter through the umbilical cord.
Jennifer Johnso…: I was with my fourth child and abandoned by my ex-husband, my children’s father, and very alone in the world.
emily harris: After the birth, Child Protective Services took her daughter and a young son. Jennifer thought she might get help for her addiction, but she got arrested.
Jennifer Johnso…: The biggest piece is the shame. To be considered a drug pusher to my kids was just… It took me years to come from under that stigma. I mean, tons and tons and tons and tons of therapy.
emily harris: Three years after Jennifer’s conviction, Florida’s Supreme Court unanimously overturned the charges. Justices said state drug law was not written to prosecute drug dependent mothers. This all happened 30 years ago, but Jennifer still feels it.
Jennifer Johnso…: I’m just not in agreement with policing people’s pregnancy and putting them in jail. I just think it’s a public health issue more so than a police issue.
emily harris: Right now in California, two women are in prison on murder charges because their babies were stillborn and hospitals found meth in the babies’ bodies. Their attorneys say the law was misapplied. Science comes into court cases like these sometimes, too, because different drugs can affect developing babies differently. For example, alcohol can be worse than heroin long term. But the big backdrop to all these such cases is whether a fetus is entitled to legal rights that would reduce the legal rights of the pregnant person. The Supreme Court weighed in on this in Roe v. Wade, letting states restrict abortion only after the fetus is considered viable. That it could live outside the womb. A lot has changed since then.
Lynn Paltrow: One of the things that’s changed is nobody talks about viability anymore. They talk about fertilization. So, what’s changed is the pressure to recognize separate rights for the unborn now starts at fertilization.
emily harris: Bills saying that human rights start at fertilization have been introduced several times in Congress as well as in at least two dozen states. As the handful that have become state law move through court challenges, expect more reckoning over the rights of pregnant people, too.
Al Letson: Thanks to Reveal’s Emily Harris for reporting that story and editing today’s show. She had help from senior supervising editor, Taki Telonidis. Thanks to researcher, Mary Retta, and executive editor, Sarah Blustain, of Type Investigations for their work on our story about data collection. Thanks also to Mississippi Public Radio and Reveal’s Najeeb Amini for production assistants. Victoria Baranetsky is our general counsel. Our production manager is Amy Mostafa. Original score and sound design by the dynamic duo, J Breezy, Mr. Jim Briggs, and Fernando, my man, yo, Arruda. They had help this week from Brett Simpson and Claire [inaudible 00:53:57] Mullen. Our digital producer is Sarah Mirk. Our CEO is Christa Scharfenberg. Matt Thompson is our editor in chief. Our executive producer is Kevin Sullivan. Our theme music is by [Camarado 00:54:08] Lightning. Support for Reveal is produced by the Reva and David Logan Foundation, the John D. and Catherine T. MacArthur Foundation, the Jonathan Logan Family Foundation, the Ford Foundation, the Heising-Simons Foundation, the Democracy Fund, and the Ethics and Excellence in Journalism Foundation. Reveal is a co-production of the Center for Investigative Reporting and PRX. I’m Al Letson. And, remember, there is always more to the story.
Speaker 44: From PRX.