What Choice Means For Some of Us After Dobbs v. Jackson: Motherhood or Jail
Reflections of a former public defender
In my nearly two decades working as a public defender, I dealt with everything from defending a client for smoking a joint in a national forest to representing death row inmates in their final appeals.
In all those years, though, I never had to defend a woman for exercising her reproductive rights. Neither have I been tasked with defending providers or others who’ve assisted women in obtaining an abortion.
In the months and years ahead, I fear these are precisely the types of cases lawyers like me will be called to take on.
With partial or total abortion bans going into effect in more than half the states in the country in the wake of the Dobbs decision, millions of girls and women throughout the United States will be denied access to abortion care.
Further, because Dobbs provides a gateway for states who seek to criminalize those who seek abortion care, (along with those who provide it), untold numbers will face the choice of becoming a mother against one’s will — or else a criminal.
The potential penalties around abortion care in our Post-Roe landscape include the following: in Oklahoma, obtaining an abortion may be punishable by up to ten years in prison (except when the woman’s life is at risk); in Idaho and Arkansas, providers who assist with abortion care risk losing their license and even could face up to five years in prison; and in Texas, obtaining an abortion may be punishable by the death penalty. These are but a few examples.
What if it was you?
Perhaps you find yourself thinking, as I do, of the women you know who have benefited from Roe. Perhaps you are one of those women. What if motherhood had been forced upon them, or you? What if the only alternative had been going to prison? Would you be a mother (against your will) — or a criminal?
I am a mother, by choice, for choice. I am also, in the eyes of some, a criminal — or at least I would have been if I’d grown up without Roe. While I’ve never had an abortion, I paid for someone else’s. And I arranged for her transportation to an abortion clinic. I can’t help but reflect on that experience through a post-Roe lens.
As I wrote this, Texas and Oklahoma, to name just two examples, were actively working to legitimize “bounty clauses” that seek to slap people like me, who help those seeking abortions, with criminal penalties.
What if it was me?
I’d like to believe I still would have done what I did even without Roe’s protections in order to support another woman’s choice. But I can’t help but wonder: had I done so in the current climate, what consequences would I have faced? Fines? Jail time? Would it have derailed my college plans? Kept me from becoming a lawyer?
Reeling at the thought of that alternate reality prompted me to reach out to other women about their own abortion stories. The stories I heard demonstrate the essential role that reproductive freedom played in their lives.
They also amplify the impossibly unfair choice that women in future generations will face.
Maggie’s Story
Maggie was just a teenager when she discovered she was pregnant.
Under the most draconian of the new abortion laws set to take effect, there are no age-based exceptions, nor any exceptions where the pregnancy results from a rape.
Maggie was fourteen. She was a virgin. And then, Maggie was raped. Her rapist took her innocence and traded it for an unwanted pregnancy. Being forced to carry that pregnancy to term, would have been catastrophic for Maggie. A minister’s daughter, Maggie grew up in a deeply religious home where sex remained a taboo topic.
It was 1974, just a year after Roe v. Wade had become law. When her period was late, Maggie took the bus to her local Planned Parenthood. The staff there provided a pregnancy test and confirmed Maggie was, indeed, pregnant. They asked her what she wanted to do.
For Maggie, there was no question. She wanted an abortion. The idea of having to raise a child, while still a child herself, coupled with the shame she knew it would bring her family, was unbearable.
More than 40 years after the fact, Maggie is equipped with empathy for her younger self and gratitude for having been spared the burden of raising a child she was woefully unprepared for back then.
Now a mother and a grandmother, as well as a leader in mental health advocacy, Maggie shudders at the thought that girls and women will soon be denied the relief that she herself was able to attain thanks to Roe.
Ruby’s Story
Relief is also a feeling that resonates with Ruby (not her real name), another woman who recently shared her story with me. Ruby was twenty-one when, in the wake of a difficult break-up, she discovered she was pregnant.
The realization hit her like a shock wave. She couldn’t be pregnant. After all, her ex-boyfriend, resolute from an early age that he never wanted children, had had a vasectomy.
Ruby couldn’t believe what she was facing. “We’d been responsible. I mean, he’d had a vasectomy — how much safer could we have been?” Yet here she was, alone, broke, and pregnant.
As the eldest child and only daughter of struggling immigrants, Ruby could not turn to her parents for help or support. “I always knew I’d be the one taking care of them — not the other way around,” she noted.
Having a baby at twenty-one, unmarried, would have brought shame and embarrassment to Ruby’s family, not only culturally, but within their church community, where the younger generation was expected to “get into to college, become successful, and take care of our parents.” Ruby chose to have an abortion.
Ruby’s unplanned pregnancy, the result of a botched vasectomy, was terminated early, around just seven weeks gestation. By all accounts, hers was a no-fault situation that was addressed without delay. Something even the most tepid supporter of reproductive freedom could get behind.
Yet, in the states where all abortion will now be illegal, along with places like Texas where abortion will only be permitted until six weeks’ gestation, even first-trimester abortions like hers will be a thing of the past. The idea of struggling to make ends meet and being forced to raise a child on her own, all while having to care for her parents remains “unimaginable” to Ruby.
The Role of Providers
Girls and women navigating choice in the case of an unwanted, unplanned, or unsustainable pregnancy aren’t the only ones with something on the line.
For the abortion provider I talked with, predicaments like those Maggie and Ruby and untold others underpin her commitment, even in the face of growing hostility towards doctors who perform abortions. Providers like her have been serving women and girls like them for years.
They’ve also been grappling with how to continue to do so in a world without Roe. With dozens of statewide bans and restrictions going into effect, along with drastic funding cuts, this small but mighty army of providers is adjusting and, in some cases, transforming their practices.
The physician I spoke with shared her perspective on the condition of anonymity, understandable given the omnipresent threats to her practice and personal safety. Still, her commitment to helping women who need abortion care is resolute.
She is among a network of physicians who operate as “fly-in docs,” traveling to states and cities where abortion care is desperately needed, but largely unavailable. Of course, with the release of the Dobbs decision, the need for this brand of heroism has increased several-fold virtually overnight.
Consider Illinois, Kansas, and North Carolina. These three states are poised to provide refuge to girls and women from surrounding states which are set to impose partial or total bans on abortion. Such border states will look to out-of-state physicians to supplement the supply of qualified MDs.
This select group must not only be trained to perform abortions, but they must also be willing to traverse the country and, when necessary, don a bulletproof vest.
While there are myriad reasons why a woman may decide to have an abortion, each story underscores the importance of abortion access, without which we are denied agency over our bodies and our futures. The women I know who’ve had abortions have enjoyed freer and fuller lives because they had Roe on their side.
They are mothers — or not, by choice. And they are not criminals.
Lindsay Bennett is a human rights lawyer and freelance writer. As a lawyer, Lindsay focuses on a range of social justice issues. As a writer, Lindsay focuses mostly on personal essays and opinion pieces, like this piece in Ms. She and her two sons live in Northern California with their beloved Australian shepherd and a bunny named Pedro.
