We Need to Sound the Alarm: Transforming the Abortion Policy Landscape at If/When/How

“Lawyers are one piece, but we need to work in concert with community and with providers. We need to talk about culture shift.”

“Roe was the floor,” says Melissa Torres-Montoya. She’s the Senior Manager of Lawyer Engagement at If/When/How: Lawyering for Reproductive Justice. For a moment, we sit silently with the weight of this statement.

If Roe was just the floor, I wonder, what happens next?

This is the same question I’ve been contemplating since my first day working at the Public Rights Project. June 24th — the exact day the Dobbs decision dropped. My major projects have focused on abortion access across the country ever since.

But for every victory we get here at PRP, there seem to be 3 new threats. And now it’s seven months later, and as I take in all of our organizing efforts and Torres-Montoya’s face on the screen, I realize I still don’t know the answer to the question: what happens next? Have our efforts made progress toward remedying the Dobbs decision?

Taking stock of my exhaustion, I look to my conversation with Torres-Montoya as a means of carrying some hope into the future.

If/When/How is a non-profit organization of lawyers aiming to “transform the law policy landscape” surrounding abortion rights and reproductive justice — “if, when, and how to create, define, and sustain their families.”

Torres-Montoya tells me that the best way to start is with If/When/How’s origin story. It began with justice-minded law students who “wanted to make and create change and lay the foundation for how they could move forward and protect the right to abortion.”

If/When/How continued to evolve and now centers reproductive justice writ large as it better reflects the necessary and sweeping spectrum of health and rights. Today it boasts 117 chapters around the country where the upcoming generation of judges, lawyers, organizers, advocates, and scholars are building the crucial foundation our legal system needs to achieve meaningful reproductive justice.

Torres-Montoya says these programs are particularly powerful as they combine lawyering and organizing. They’re all about finding your “political home.”

W ith the overturning of Roe, If/When/How recognizes that we need all lawyers, not just reproductive justice attorneys, to join the movement and learn how to be an advocate within their field.

The first step for these lawyers who lack reproductive justice experience, Torres-Montoya says, is being “open and willing to hear from those who have been doing this work for a long time,” to hear from those most profoundly impacted by restricted healthcare access.

“We talk about centering the people who are experiencing it,” Torres-Montoya tells me, “and we are all experiencing it. But are we experiencing the same levels of oppression? And that’s what reproductive justice is really trying to ensure, is that we are all gaining equitable access…and realize our reproductive decision making.”

As we speak about the far-reaching effects of the Dobbs decision, Melissa emphasizes that not all of us are impacted by the loss of Roe equally, and that some groups are particularly vulnerable to the effects of increased abortion bans.

As many advocates have pointed out, abortion bans are also an urgent racial justice issue. As the abortion rate for Black women is almost five times that for white women and six out of ten abortion providers are located in communities where more than half the residents are white, these abortion bans take a dire and disproportionate toll on people of color.

Additionally, minors are also more heavily impacted by abortion bans — they not only lack financial means to pay for out-of-pocket abortion services, but also struggle to access nearby clinics and make trips to providers.

Melissa tells me this is why If/When/How launched Eliminating Barriers of Parental Involvement Laws and Judicial Bypass as a strategic initiative.

From a legal perspective, young people face the unique challenge of “judicial bypass.” Parental involvement laws require minors to receive permission from a parent or parents to get an abortion. That ask is often difficult enough, but Torres-Montoya points out, “there are also lots of instances and reasons why a young person might not seek parental consent or support or approval.”

When seeking judicial bypass of parental consent, minors are required to go before a judge and offer clear and convincing evidence of abuse or prove that neither of their parents is acting in their best interest by declining to consent to the abortion.

As Torres-Montoya describes this process I think about who I was as a teenager.

How I, uncomfortable with my sexuality, felt pressured into sleeping with boys in an effort to prove I was straight. How caught up I was in the middle of my parent’s divorce and new stepfamilies — I never dared to ask my parents to take me to get birth control, never mind an abortion.

With my mother working as a family attorney in our city, would I have been brave enough to walk in front of a judge and explain all of this? I doubt my ability to have sought this legal bypass had I needed to.

If/When/How has set up a legal helpline to help to combat these barriers. “If a young person is seeking an abortion and does not want to gain parental consent or notify their parents,” Torres-Montoya says, “they can call our helpline” for confidential legal information.

Listening to Torres-Montoya, I am struck by the dual nature of youth in this abortion fallout — they are foundational organizers of the coalition and the community at the center of If/When/How’s organizing.

Now that “we don’t even have that floor” provided by Roe, lawyers need to prepare to protect against the criminalization of abortion. If/When/How trains attorneys via their internal Criminal Defense Team, a “small and mighty” group of lawyers collaborating with local counsel across the nation to train lawyers on abortion-specific criminal defense strategies.

Although the Criminal Defense Team existed before Dobbs, we now have “laws in place stating that a medical provider is not legally allowed to provide an abortion in certain states.” That means the criminalization of pregnancy outcomes could become more and more common, ultimately causing a greater “need for criminal defense attorneys to have that expertise,” Torres-Montoya explains.

Again, I find myself wondering, what happens next? Is the best that we can hope for a mere recouping of our former floor? A standard for reproductive rights that didn’t even scratch the surface of how comprehensive those rights should be?

Torres-Montoya offers a reassurance:

“We’re working on regaining…and we’re also re-imagining. What emerges from this is a need to have a multi-pronged approach. Lawyers are one piece that we’re working on– that legal strategy, that legal right–but we need to do it in concert with communities.

We need to work with providers. We need to work with those outside of just the legal structure. And we need to talk about culture shifting.”

Now, it seems, advocates are faced with the possibility of developing a new, inclusive framework of reproductive justice that expands far beyond abortion.

“The right to abortion is one thing, but the right to sex education, the right to sexual pleasure — these are all under the reproductive health and justice umbrella,” Torres-Montoya says.

She explains that “culture shifting” our definition of reproductive rights is imperative in protecting against the myriad of other attacks that could come from the legal reasoning of Dobbs.

Not only will the rationale behind this decision impact one’s ability to seek an abortion, but this legal opinion sets precedent that can impact “adoption…contraception…and transgender [rights]. A lot of the legal reasoning is the same,” Torres-Montoya tells me.

“We need to sound the alarm that people who care about this decision have to care about that whole scope,” she continues. The loss of federally-protected abortion access has deep and abiding ramifications, but its loss is much more complicated than at first blush, rippling into nearly every facet of a person’s life and ability to make decisions.

Lawyers, organizers, and impacted individuals must work together to address the breadth and scope of what reproductive justice can be, an aim that reaches far beyond our former floor.

To support the work of If/When/How, individuals can donate to their Repro Legal Defense Fund, where legal experts provide financial support to people being criminalized for their pregnancy outcomes and with practical support costs.

First-year attorneys can apply for their Reproductive Justice Fellowship Program, which places early-career lawyers at nonprofits to support the work and capacity of the organizations

Attorneys interested in expanding their skill sets can also sign up for If/When/How’s Reproductive Justice Lawyers Network for monthly trainings