The Future Of Abortion In America Lives Here

The Supreme Court, two dueling rallies and the most important abortion case in decades

(Justin Brooks for Vocativ)
Mar 03, 2016 at 5:48 PM ET

For four decades, Diane Derzis, the owner of the last abortion clinic in the state of Mississippi, has done everything in her power to keep her clinic open and her patients safe—even if that requires carrying a Smith & Wesson. But on Wednesday, she was fretting as she stood across the street from the Supreme Court, watching dueling groups of protesters gather. “I’m nervous. I’m very nervous. You look at that [bill] and you think how this right hangs on a thread.”

The case scaring Derzis and galvanizing both the pro-choice and pro-life communities is Whole Women’s Health v. Hellerstedt—the biggest challenge to reproductive rights to come before the Court in a generation. Justices heard oral arguments Wednesday, and the case couldn’t have fallen at a more uncertain and unhinged moment in the history of reproductive rights in America.

The previous day, a deluge of presidential primaries had all but determined that the next president will either be a progressive woman who is outspoken about women’s health issues or a famously sexist billionaire who describes himself as “pro-life” (to his credit, he recognizes that Planned Parenthood has helped “millions of women. He just doesn’t consider abortion “help”). 

Planned Parenthood, the highest profile national organization offering abortion, was recently under investigation by seven states and the U.S. House of Representatives after a group called the Center for Medical Progress released 11 heavily edited videos allegedly showing the organization’s staffers selling fetal parts, juxtaposed with images of aborted fetuses. Three months ago, in the midst of these investigations, a man named Robert Dear stormed into a Colorado Planned Parenthood clinic with a semiautomatic rifle and fired 20 shots, killing three and injuring nine. He said, in a later court outburst, that he did it because he considers himself “a warrior for the babies.” Meanwhile, for abortion rights opponents, the deathly spirit of the 2013 case of Dr. Kermit Gosnell and his “house of horrors” has only grown stronger, emboldening their cause. All while state houses across the country are enacting a record number of abortion restriction bills, in an effort to chip away at women’s constitutionally protected right.” 

Into this highly charged environment comes WWH v. Hellerstedt, the first abortion case heard in the Supreme Court since the death of famously anti-abortion Justice Antonin Scalia. Many SCOTUS observers speculated that the weight of Scalia’s opinion would have likely tipped the scales of justice in the direction of stricter abortion regulations, upholding a Texas law that would close all but about 10 abortion clinics in Texas. But now, the outcome is far less predictable.

That Texas law, HB2, was enacted in 2013 and requires doctors who perform abortion have admitting privileges at nearby hospitals. Additionally, it requires all abortion clinics to meet strict safety, building and staff standards and specifies exactly how medical abortion must be administered. Proponents of the law insist these are a common-sense measures to protect women, that the safety of both women and babies is at stake. Whole Women’s Health is arguing that this law violates “undue burden” standard set by 1992’s Planned Parenthood v. Casey, and that abortion access across the US is at stake. If the court rules that HB2 doesn’t create an undue burden on abortion access and that a lower court opinion upholding the Texas law can stand, not only will the majority of Texas abortion clinics close down, but any pro-life-leaning state legislature could similarly force abortion clinics to shutter through draconian safety regulations. 

While eight justices heard arguments inside the stoic facade of the Court, all the anger and confusion swelling around the abortion debate over the last year came to head outside, as two massive groups clashed on a single city block.

At 4 a.m. on the morning of the most significant abortion case to reach the High Court in decades, the curtilage of the court was occupied almost exclusively by Christians and wonks. As a small group of pro-lifers were three-quarters of the way through their all-night prayer vigil, the first attorneys arrived to wait in line with the hope that they’d make it into the courtroom when doors opened at 8 a.m.

“I’m here for some high-quality lawyering on a really important issue,” attorney Michelle Movahed said from the front of the line. “What happens here is going to be monumental in terms of importance to women’s equality.”

At 8 a.m., activists put an end to the calm of the all-night prayer vigil, flooding the area between Supreme Court steps and 1st Street with chaos. Two events, the pro-life #ProtectThemBoth rally and pro-choice #StopTheSham rally grew simultaneously, divided only by a three-foot lane down the middle, as if an invisible force kept the two groups apart.

Each group congregated around a podium on a platform where leaders of the respective movements spoke of their own struggles, celebrated their cause and denounced the evil of the other side.

Both podiums kept a steady rotation of politicians, activists and faith leaders. Rock stars of the pro-choice side included Planned Parenthood president Cecile Richards and Whole Women’s Health president Amy Hagstrom Miller. The #ProtectThemBoth rally’s main speaker was U.S. Speaker of the House Paul Ryan.

“We are standing for women, for the unborn—standing for the rule of law. We have to make sure that our voices are heard,” Ryan said into the mic. But even with the group’s impressive sound system, it was difficult to hear much of his speech over the chants of pro-choice protestors.

The raucous pro-choice rally often eclipsed its pro-life counterpart in both sound and volume. In fact, the #StopTheSham gathering was so large that many pro-choicers couldn’t get close enough to hear their speakers and opted to troll the other side instead.

Despite brutal winds and the life-or-death nature of the case at its center, the pro-choice rally felt more like a feminist summer camp than Roe v. Wade’s last stand. Protestors wore wild flares and held up bright, blunt signs and flags: “Not every ejaculation needs a name,” “Keep your rosary off my ovaries!” To prevent pro-choicers from storming the #ProtectThenBoth rally, many pro-lifers linked arms, forming a chain of blue. But despite histrionic rhetoric, jeers, and prankish censorship from both sides, there was no violence.

One woman, holding a sign featuring photos of dismembered fetuses, told Vocativ she was just showing pro-choicers what choice looks like. “What the heck do they think abortion looks like—peanut butter-jelly sandwich? I don’t know. But it doesn’t. It looks like this. It looks like body parts. It looks like videos from the Center for Medical Progress.” Both pro-choicers and pro-lifers rushed to help her when a gust of wind caught her sign and knocked her to the ground.

Both sides emphasized how diverse and representative of America their cause is, but the #StopTheSham movement was noticeably more varied and younger than #ProtectThemBoth, with many speakers representing organizations for Latinas, Asian Pacific American women, women of color, Jewish women and LGBTQ people.

“We’re here because reproductive rights are LGBTQ rights. This is the progressive movement showing up for reproductive rights.” Candace Bond-Theriault, policy counsel of the National LGBTQ task force said. “For us, we recognize that bodily autonomy is really important for the LGBTQ community and we just really get it and we stand here for them.”

Many pro-choice activists present see HB2 as another burden to communities that already suffer. “This is affecting Latinas because we already face so many barriers and this will just create additional hurdles. If this law were to be fully implemented only ten clinics would remain open to serve 2.5 million Latinas in the state of Texas,” Ann Marie Benitez, a senior director at the National Latina Institute for Reproductive Health said. “And we already face, as a community, so many barriers. We’re already hearing stories on the ground of women who have to collect money so they can pay for the services find transportation. It’s a multiple-day process. They need to find child care they need to find hotels, and it’s a completely inaccessible.”

Most of these groups within the pro-choice movement expressed why reproductive restrictions affects them uniquely, but on the pro-life side, many of the voices of diversity or youth seemed eager to prove young, diverse people care about pro-choice causes. “We brought in a lot of students out here today to make sure the Supreme Court knows that there are young people in America that support the pro-life movement that are standing for life,” Missy Stone, the national director for Students for Life, told Vocativ.

At least five members of the Pro-Life Alliance of Gays and Lesbians were in attendance, but none of them were leaders of that organization. “Within the community, there definitely has been a movement for more inclusion to accept and really embrace non-traditional pro-lifers, if they have weird colored hair, if they’re LGBT, if they’re atheist, if they’re democrat, whatever,” Aimee Murphy, executive director of the Life Matters Journal, said. Murphy identifies as LGBT and has pink-and-teal dyed hair. Her pink hoodie read, “This is what a pro-life feminist looks like.”

A common theme within both groups was personal abortion stories. While some pro-life speakers mentioned regretting their past abortions, pro-choicers spoke of their decision to get an abortion and the difficulties they faced in doing so.

“I found out I was pregnant three days before my 19th birthday. I was a freshman in college. I came from a single family, very low middle class. I’ve always known that I wanted financial security for myself and my future family,” a pro-choice speaker named Kayla, who didn’t want to give her last name, told Vocativ. “Being pregnant was at odds with all of that, so I decided to go through with the procedure. There were a lot of obstacles put in place from the state of Ohio, such as I have to go [in] at least 24 hours before the procedure for a consul and at that consul we were subjected to an ultrasound. We were forced to hear the heartbeat. “

Diane Derzis, the owner of the Mississippi clinic, was also 19 when she decided to get an abortion 42 years ago, the year after Roe v. Wade was decided. At the time there weren’t any abortion clinics in her home state of Mississippi, but she found a doctor in Birmingham, Alabama, who performed the procedure. She paid him $125 and he told her, “You didn’t have any problem spreading your legs before, so spread them now.”

To ensure that other women have a less traumatic experience, Derzis has opened a few clinics in southern states, including the only clinic in Mississippi. Some of those clinics were shuttered because of regulations, but laws are about the only way to get Derzis to close a clinic. In 1998, her Birmingham operation was the site of the first fatal bombing of an American abortion clinic. A nail bomb in a FedEx package killed a guard, injured a nurse and blew out doors and windows. Derzis went back in as soon as the police would let her and worked in freezing temperatures to get the clinic operational again. And while none of her employees have been murdered since, she still says running a clinic is still more difficult and dangerous than ever before.

“Harder to run a clinic? No question. Not only are we facing the legislature with every year passing some kind of crazy, crazy bill, but it’s hard to get vendors,”  Derzis told Vocativ. “The church people go to these businesses and say, ‘You don’t want us to come out against you.’ These are people who live in the community. That’s not right. That’s why we’re here fighting. Women’s lives depend on this.”

As the event came to an end just after noon, the #ProtectThemBoth crowd ended their program with a chant: “We. Are. The pro-life generation. We. Are. The pro-life generation.” The crowd scattered and a few men in suits and clergy robes who had spoken throughout the morning posed for photos with activists.

The #StopTheSham movement stuck around a few moments longer. A woman dressed up as a uterus danced as people cheered her on and lifted their signs high. They weren’t ready to leave just yet. To be fair, they hadn’t been up all night worshipping God at the steps of the Supreme Court.

Justices will vote on Friday, but probably won’t announce any decision until the last week of June, when all decisions of this session are traditionally announced.

Without Scalia, the case could face a 4-4 split and a deadlock that would leave the Texas regulations in place, but fail to establish the precedent necessary to overturn other differing circuit court decisions. In that case, clinics in other states with laws similar to the one in Texas could sue over “undue burden,” elevating cases to a Supreme Court with a new, to-be-determined Justice. In which case, the fight has just begun.