On April 7, 2022, Lizelle Herrera, a 26-year-old mother of two, was arrested and charged with murder in Rio Grande City, Texas for having a miscarriage. Why?
While miscarrying, Herrera disclosed information to hospital staff that made them believe she had induced her own abortion. Staff later reported this information to county police. A grand jury indicted Herrera for allegedly causing “the death of an individual,” and her bail was set at $500,000.
Herrera’s case encapsulates the dangers of anti-abortion laws for women of color, including gender nonconforming, nonbinary, and transgender people of color. Last September, Texas passed SB8, a so-called “heartbeat law” that bans abortion after six weeks and deputizes private citizens to enforce the law. The state also recently passed SB4, which makes it a criminal violation to provide abortion pills to someone after 49 days—or seven weeks—of pregnancy.
The county’s district attorney dropped Herrera’s case after the Frontera Fund, South Texans for Reproductive Justice, and other local reproductive justice groups mobilized to protest Herrera’s arrest. Their efforts were simply matter of following the law, according to many observers, as SB8 only allows civil suits against those who “aid and abet” an abortion. In fact, the medical provider had no reason to report Herrera, and the police had no reason to arrest her, because self-managed abortion is not illegal in Texas (or most US states).
Even so, by punishing abortion provision and assistance, restrictive state laws create what advocates call an “aura of illegality” that leads to pregnant people—especially women of color—being criminalized for their pregnancy outcomes. Herrera’s case wasn’t the first arrest of a woman of color for having a miscarriage—consider, for example, Indiana’s criminal sentencing of Purvi Patel in 2013—and it won’t be the last.
The rapid response to Lizelle Herrera’s arrest was a result of cross-movement organizing. That response eventually secured her release, demonstrating the need for intersectional analysis in and collaboration across movements—specifically, for abortion rights and reproductive health care and police and prison abolition. Women of color are at the forefront of these and other movements, which intersect in the reproductive justice movement.
Defining Reproductive Justice: More Than Abortion Rights
Reproductive justice is a women-of-color-led framework that is distinct from reproductive health and rights-based activism. The term was coined in 1994 when a group of Black feminists gathered in Chicago as “Women of African Descent for Reproductive Justice.” At a time of national debate around health care reform and abortion, they discussed Black women’s specific needs—and the needs women of color in general—which had been overlooked by a women’s movement historically centered on white, middle-class women’s concerns.
That year, the group drafted a statement calling for an intersectional approach to health care and published it as a full-page ad in publications like The Washington Post. They wrote: “Reproductive freedom is a life and death issue for many Black women and deserves as much recognition as any other freedom,” read the statement, which demanded that health-care reform provide funding, not just for abortion, but also for “the full range of reproductive services,” including prenatal care, contraception, and screening and treatment for cancer, STDs, and HIV/AIDS. The statement also asserted that health care plans “must include strong anti-discriminatory provisions to ensure the protection of all women of color, the elderly, the poor and those with disabilities. In addition, the plan must not discriminate on the basis of sexual orientation.”
Black feminist activist, educator, and scholar, Loretta J. Ross, was a member of that group. In 1997, she co-founded the SisterSong Women of Color Reproductive Justice Collective, made up of 16 organizations led by and centered on Black, Indigenous, Latina, and Asian American women. SisterSong defines reproductive justice as “the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.”
In other words, reproductive justice includes reproductive rights concerns—namely, abortion access and other forms of reproductive health care—but reproductive justice is more than that. In addition to the right of any pregnant person to have an abortion, reproductive justice includes the right to have children when and how a person sees fit, under conditions they choose. It also means all families have the resources they need to parent safe and healthy children.
A reproductive justice framework takes a more holistic approach to bearing and raising children, moving beyond the rhetoric of “choice,” which hasn’t always been meaningful for women of color. It asks: What are the social, political, cultural, and economic conditions under which women, nonbinary and gender nonconforming people, and trans men can “choose” to have children? How does our society make pregnancy an easy choice for some people and a difficult question or forced burden for others?
Next year will mark 50 years since the Supreme Court’s 1973 decision on Roe v. Wade, the federal law that guarantees the right to an abortion. Conservative legislators want today’s Supreme Court to overturn Roe, but they aren’t waiting—state legislators across the country have passed bills that undermine federal law. Between the 1973 decision and the end of 2021, states enacted 1,338 abortion restrictions. As The National Institute for Reproductive Health notes these restrictions have “disproportionately affected women of color, immigrant women, low-income women, and women in rural communities.”
Roe has been under attack since it became precedent, and the impact of these attacks falls disproportionately on women of color—particularly those who are Black, Indigenous, low-income, and immigrant—as well as trans, nonbinary, and gender nonconforming people. In 1976, three years after Roe, legislators passed the Hyde Amendment to prohibit federal funding for abortion. Over 45 years later, President Biden finally dropped Hyde from the 2022 budget, following considerable pressure from activists during the 2020 Democratic primaries, his presidential campaign, and first year in office.
The “amendment,” which was not a law but a congressional budget rider, had to be renewed every year, and it prevented the use of Medicaid and other federal programs to pay for abortion, thereby limiting such care to those who could pay out-of-pocket. For low-income women, this effectively amounted to an abortion ban. The Guttmacher Institute notes that, as of 2019, half of all women aged 15–49 with below poverty-level incomes were insured through Medicaid in 2019, and due to systemic racism’s effects, Black and Latinx women were disproportionately subject to and impacted by Hyde’s restrictions.
With this arrangement in place, the US religious right and the anti-abortion movement grew over the next three decades, leading to today’s numerous direct legal challenges to Roe.
What Is Abortion Decriminalization?
Given the recent onslaught of restrictive state laws, reproductive rights activists and organizations are preparing for the next phase of abortion access—and it’s a fight that Black and Brown reproductive justice organizers are already leading.
Shortly after the Supreme Court upheld SB8, Interrupting Criminalization (IC), a project based out of Barnard College, released a brief demonstrating the need for cross-movement organizing to decriminalize abortion. The brief, Abortion Decriminalization is Part of the Larger Struggle Against Policing and Criminalization: How Our Movements Can Organize in Solidarity with Each Other, was a collaboration between several reproductive justice and health justice organizations: Abortion Care Network, Elephant Circle, Academy of Perinatal Harm Reduction, Physicians for Reproductive Health, If/When/How: Lawyering for Reproductive Justice, Human Impact Partners, and the National Network of Abortion Funds.
The brief begins with a framing question: What does abortion criminalization have to do with movements to end police violence and criminalization?
The collaborative’s answer was, in short: Everything. The longer answer is the brief itself, which highlights the connections between social movements that are responding to “a widening web of criminalization.”
Over the past 10 years, states across the country have passed a slew of anti-abortion laws—according to the Guttmacher Institute, 44 percent of all abortion restrictions since Roe v. Wade were made in the last decade. Planned Parenthood avers that 19 states have “severely restricted” abortion access, and nine states have restricted access. This means that almost 60 percent of US states have little-to-no abortion access, even though abortion remains legal at the federal level.
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And in the past two years, conservative lawmakers have redoubled their efforts: In the first five months of 2020—at the start of the global coronavirus pandemic and an ensuing public health crisis—44 states introduced laws to ban most or all abortions.
Against this backdrop, IC’s brief discusses how SB8, the Texas law that bans abortion after six weeks, expands the carceral state—with implications for the entire country. Indeed, SB8 has become a model for anti-abortion legislators around the country, and as the brief notes, in the past year, several state legislatures—from Idaho to Florida and Oklahoma to Kentucky—have introduced over 400 abortion restriction laws, including some that ban abortion outright. The authors write, “The expanding surveillance and criminalization of mutual aid, self-managed care, and bodily autonomy, and the growing attempts to criminalize pregnant people, parents, and health care providers have far-reaching ramifications beyond abortion criminalization that require us to join together to collectively resist!”
Such laws increase abortion stigma by making what is legal seem illegal. They also use broad language that allows those with more social power the ability to police their neighbors—as evinced by organized anti-abortion groups using their digital platforms to get leads on people to report. This may be why the authors view organizing against abortion criminalization as “an opportunity to upend carceral logics and the culture of criminalization and punishment” that impacts all social movements.
Marginalized communities are disproportionately burdened by these laws and the criminalization that results from them. As the brief’s authors write, “The criminalization of pregnant people at all stages of pregnancy and birth constrains people’s bodily autonomy and reproductive freedom—especially for Black, Indigenous, disabled, trans, and queer people, migrants, people surviving economic violence, and young people.” This is a result of “a long history of racial capitalism and white supremacy in [the US’s] legal, medical, and social systems, which has deemed some people “unfit” and “undeserving” of basic needs like health care and reproductive autonomy.”
Medical providers may contribute to abortion criminalization by collaborating with law enforcement (for example, by communicating information about a miscarrying person’s drug use) or by validating some abortion decisions over others (for example, early pregnancy terminations over later ones or so-called “elective” abortions). Whether this is done inadvertently or intentionally, the result is the same: the propagation of narratives about “good” and “bad” abortions that bolster policies to eliminate access to abortion and reproductive health care.
Recent data from Texas illustrates this framing’s impact. Fund Texas Choice provides travel assistance to Texas residents seeking abortion care in and out of state. They note that 70 percent of their clients are BIPOC and 60 percent are already parents. After two months under SB8, 99 percent of their clients are traveling out-of-state, resulting in 15 times the former average driving distance, higher costs, and ultimately, fewer people served.
Writing that “Criminalization exists in diametric opposition to public health principles, medical ethics, and healing justice,” the brief’s collaborative of health practitioners, public health experts, impacted community members, and movement organizers and advocates announce their recommitment to the “caring intentions” of their work, “by refusing to participate in criminalization” in its various forms. This includes, but isn’t limited to, challenging the following practices:
- ICE and police presence in care spaces
- Responses to community members with unmet mental health and other needs
- Mandatory reporting
- Medically unnecessary drug and alcohol testing results
- Prosecution of people who overdose
- Family regulation systems
The Abolitionist Past and Future of Reproductive Justice
On April 5, 2022, two organizations involved in the collaboration—Interrupting Criminalization and the National Network of Abortion Funds—held an event to discuss the brief’s central questions and expand on its concerns. The event, “Abortion Access and the Fight Against Policing and Criminalization,” featured an engaging panel of Black feminist, trans, and queer organizers and activists. Each of the panelists discussed why an abolitionist vision is necessary for the future of reproductive justice organizing, and how each of these movements can support the other.
After discussing how the event was organized to meet language justice and accessibility needs, and after leading participants in a grounding practice, the event’s moderator, Maria Thomas, an abolitionist public health activist and Beyond Do No Harm Fellow, outlined connections between reproductive justice and abolitionist movements with reference to key organizing victories, ranging from the Young Lords working to ensure access to care in the Bronx to ending lobotomies in prisons like Attica and fighting sterilization abuse. “This is the kind of organizing that won Roe v. Wade—it wasn’t handed down by the courts, it was won in the streets.”
The brief’s contributors shared their experiences of reproductive justice organizing, their analysis of the current landscape, and why an abolitionist vision is necessary for the future of their work.
First, Oriaku Njoku, co-founder and executive director of Access Reproductive Care—Southeast, emphasized the “policing and criminalization of Black and Brown folks since the beginning of this country—so this reality is not new for us.” What is new about SB8—and other copycat legislation—is that those who support people who seek an abortion are being criminalized and subject to a civil suit.
Next, Abortion Care Network’s deputy director, Erin Grant, echoed Njoku’s concern about the disproportionate impact of state anti-abortion laws, “The criminalization of reproductive health care of any kind right now is because we’re living in conditions that are not made for us to thrive.” Grant emphasized the responsibility that those working in health care have to their patients, saying, “We are more creative and compassionate than any kind of policing or punitive project. I hope that others in this community get a wrench in their gut when they know that they’re engaging in policing, being active agents of harm.”
Black Feminist Future’s founder and director, Paris Hatcher, discussed “the importance of radically imagining what justice means for ourselves and our people,” making a distinction between what is “legal,” “moral,” and “just” when taking action to fight for abortion rights and access. In so doing, she questioned the role of nonprofits in the movement. She asked, “Are we going to be satisfied if we have our 501(c)3s but abortion is no longer available? Are we going to be able to tell the next generation that we did all that we could?” As Njoku later concurred, “We can’t keep doing the work in the same way and expect different results.”
Finally, TransLash Media’s founder, Imara Jones, discussed how her organization uses storytelling to combat anti-trans violence, sharing a recent video series about trans abortion stories. In addition, Jones observed that the anti-abortion movements’ techniques are now being used to demonize trans people and the parents of trans children. These tactics include protesting outside doctors’ offices that provide gender-affirming health care and punishing parents who support a child’s transition. As she put it, “The left is alarmed now, but the right thinks that Roe v. Wade is dead, abortion is dead, and they’re moving onto the next fight—the fight over trans rights.” Central to both is control over bodily autonomy.
Calls for Action
Panelists spoke about calls for action in response to the question, “What is the next iteration of the fight?”
Noting again that a narrow focus on legality weakens what is possible, Hatcher averred that activists can “break these bans” by developing an inside-outside strategy that considers, “What can you do in your 9-to-5, and what must we do in our communities?” Likewise, while acknowledging that “it can be hard to imagine a future of reproductive justice in this time of uncertainty,” Njoku argued for cross-movement solidarity and said, “We’ve already made so many compromises—this is not the time to compromise and it’s not the time for a doomsday mentality. Let’s not be the barriers to our own collective liberation.” Both panelists acknowledged the risks of challenging anti-abortion laws and nevertheless called for bold, creative, and direct action to win a future of reproductive justice for all.
Speaking of the implications of abortion criminalization at this time—that is, with tens of millions suffering amid a pandemic, ongoing structural racism, and high inflation—Grant reminded the audience that “The call is still to defund the police.”
To this end, Interrupting Criminalization offers the following suggestions to resist the criminalization of reproductive autonomy:
- Amplify and lift up the history, framing, and demands of the reproductive justice movement and an intersectional framework that extends beyond “choice.” This means learning from the analysis and work of reproductive justice organizations like SisterSong, SisterReach, and Bold Futures, as well as other organizations fighting for decriminalization in other areas, like the Drug Policy Alliance, Movement for Family Power, Reframe Health and Justice, and Survived and Punished.
- Divest from mechanisms and sites that criminalize reproductive autonomy; invest in affirming care, bodily autonomy, and reproductive justice. For this, the authors draw inspiration from abolitionist demands to divest from policing, prisons, and militarization. The brief lists specific targets for divestment and investment.
- Destigmatize abortion. The authors recommend talking about abortion, sharing information to ensure people know their options for care and assistance, and communicating your support to shift the culture of stigma, isolation, and shame that contributes to abortion criminalization to one of love, compassion, and community.
In response to audience questions, the panelists had additional suggestions:
- In organizing and everyday conversations, use the language people use and make connections to shared values.
- Clinic workers can show solidarity in spite of restrictive laws by providing information, using a clipboard to check in about issues outside of official forms to ensure patient privacy and safety, and as Grant put it, “signaling to people that we understand and serve the full scope of humanity via what we keep in the waiting room,” including vibrant artwork expressing intersectional themes, internal and external condoms, and overdose-reversal medications like Narcan.
- Lawyers can support the reproductive justice movement by providing information to and legal representation for those who take greater risks and by developing a strategy for organizations to support people navigating criminal law.
As the IC brief states, “New criminalization laws are a result of and lead to more funding for policing, which leads to more incarceration and less money for life-affirming efforts.”
Despite these unrelenting attacks on communities of color, Interrupting Criminalization concludes the brief by asserting that another world is possible: One week after Texas passed SB8, Mexico’s Supreme Court decided unanimously to decriminalize abortion, following years of feminist organizing and protest.