Beyond Dobbs: How Abortion Bans Enforce State-Sanctioned Violence

The Intercept

2 days ago

Since the Supreme Court's landmark June 2022 decision in Dobbs v. Jackson Women's Health Organization overturned Roe v. Wade and federal abortion protections, a wave of state legislatures have rushed to impose bans and restrictions. According to the Guttmacher Institute, 41 states now have abortion bans in effect, including 12 with total bans.
'We hear about the endless, supposedly unintentional consequences of abortion bans like rising maternal mortality, child rape victims forced to travel across state lines, increased risk of criminalization, pregnant victims coerced by their abusers, all of that,' says journalist Kylie Cheung, author of 'Coercion: Surviving and Resisting Abortion Bans.' 'But I very much argue that these aren't unintended consequences.'
This week on The Intercept Briefing, Cheung joins host Jessica Washington to trace the direct line from the Dobbs decision to state-sanctioned gender-based violence and control.
'This is what abortion bans function to do, which is to police and control pregnant people, to feed cycles of abuse, to be this tool in the toolbox of abusers. To enact racial violence and economic subjugation and essentially lower women and pregnant people and people who can become pregnant to this lowered class in our society,' says Cheung. 'And that is not unintentional at all.
Listen to the full conversation of The Intercept Briefing on Apple Podcasts, Spotify, or wherever you listen.
Transcript
Jessica Washington: Welcome to The Intercept Briefing. I'm Jessica Washington.
A year after the Supreme Court handed down the Dobbs decision — reversing Roe v. Wade and erasing decades of precedent enshrining the right to abortion — a Nebraska teenager was sentenced in connection to her abortion. Her arrest, which largely hinged on Facebook messages between the teen and her mother — garnered international attention.
In court, the then 18-year-old who was only 17 at the time of her abortion, testified that she'd been in an abusive relationship and was scared of sharing a child with her abuser.
'I was honestly scared at the time,' she told District Court Judge James Kube. 'I didn't know what to do.'
Despite her pleas, the judge seemingly dismissed her concerns over the abuse.
In July 2023, she was sentenced to 90 days in prison for 'illegally concealing human remains' and received an additional two years of probation. Her mother, who'd helped her obtain the abortion medication, was also sentenced to two years in prison. The Nebraska teen's case is just one of countless examples of how survivors of domestic violence find themselves crushed between the intersection of abortion bans, fetal personhood laws, and the criminal legal system in the post-Dobbs era.
Joining me now is Kylie Cheung, a journalist covering gender and power, and author of 'Coercion: Surviving and Resisting Abortion Bans,' her new book connecting the through lines between the Dobbs decision and state-sanctioned gender-based violence and control.
Welcome to the show, Kylie.
Kylie Cheung: Thank you so much for having me.
JW: I want to start with this quote in your book that really hit me. You share this quote from Sara Ainsworth, senior legal and policy director at the reproductive justice legal organization If/When/How, about the reality of survivors living in states with abortion bans. She said, 'You live in a state where you're more likely to be criminalized than the person who's abusing you. It's devastating.' That's a really haunting statement.
Kylie, what is the reality for survivors trying to access abortion care in states with fetal personhood laws and/or abortion bans?
KC: That quote definitely really stayed with me too and there were some lawmakers, I believe, in Missouri who are trying to raise awareness about how you couldn't finalize a divorce while you're pregnant in that state.
And I think what people need to know is that homicide is a leading cause of death for pregnant people and during pregnancy you might either experience abuse for the first time or abuse will escalate. And we also know that — because of incredible research projects like the Turnaway study, which tracked over the course of several years how the lives of people who sought but were unable to access abortion care — what the impacts were for the rest of their lives. And in addition to being at much greater risk of poverty or being pushed deeper into poverty, we saw that long-term domestic violence was also a much, much bigger risk, which makes sense as someone may be forced or entrapped within a relationship with an abusive partner.
I also was able to speak to several people who were forced to carry rape-induced pregnancies or carry children with their rapists. And sometimes that is a choice, and sometimes it is not a choice under these laws where we already have seen: There were research estimates that at least, or around 65,000 rape-induced pregnancies had occurred in 14 states that had banned or almost banned abortion. And in most of those states, there were no exceptions for rape attached to the bans. And just within one year of Dobbs in the summer of 2023, the National Domestic Violence Hotline said that they'd received double the number of calls about reproductive coercion compared to the year before. Just last month, there was another study that showed there were 9,000 more incidents of domestic violence after Dobbs in states that had banned abortion.
So we saw that these laws were associated with higher risk of intimate partner violence-related homicide. And the so-called 'beautiful bill' or the budget bill that passed, if that provision that defunds abortion providers is allowed to stand, I think Planned Parenthood has estimated that 1 in 4 abortion providers across the country could be forced to shut down. But you know, what we really see is the abuser and the state occupying this conjoined role.
JW: Yeah, I'm really glad that you wrote about this. So often domestic violence is left out of this narrative. And I think, you and I've covered this now for a while, [we] know how central it is to kind of everything that we're talking about in reproductive justice.
One of the cases you dig into is the story of the Nebraska teenager who was imprisoned after having an abortion, and whose claims of domestic violence were seemingly ignored in her sentencing.
But when I was researching for this episode, I found that most news outlets didn't mention the alleged abuse. Why did you choose to highlight that aspect of her story, and why do you think so many news outlets didn't?
KC: There are so many takeaways, and there's so much about that specific case that are horrifying and dystopian. Like, for example, it fell into the pattern of what we often see, which is that so often people are reported to police by acquaintances, by neighbors, by community members. And then you also see her text messages — like her digital history and that way — via Meta were also used. And that raised a lot of questions about the extent to which Big Tech and these social platforms and corporations are going to participate.
On a personal level, what stood out to me the most was that she had the abortion because she was in an abusive relationship.
Hold on. I'm trying to pull up the quote from the judge because it upset me a lot, honestly, where he said, 'I don't get the impression, from reading all the reports in the pre-sentence investigation report, that there was some kind of physical health issue that was going on. I tried to talk to you about that a little bit, and you confirmed that you just didn't want this baby. You didn't want this pregnancy based on the person that got you pregnant.'
I mean, that quote, it just angered me so much — the way that I could just lose sleep thinking about it because there's so many different layers to that.
For one thing, he said, 'You just didn't want this pregnancy.' Why isn't that enough for one thing? And, 'You didn't want this pregnancy based on the person that got you pregnant.'
JW: Yeah, I remember that quote. That really stood out to me. I'm glad you included that in your book and brought that up now because I think that quote is really important for people to hear.
I want to talk about some of the other stories, though, from your book. I think some of the most powerful and haunting stories that I read in your book were about women who were effectively held against their will in hospitals over perceived risks to their fetuses, and in some cases allegedly forced into medical procedures such as having a C-section.
Many of these cases predate the Dobbs decision. Are you able to talk about some of these cases or one of these cases? And also how is this legal?
KC: What we've seen so far is that more and more hospitals and doctors in response to someone experiencing pregnancy complications that could vary straightforwardly and safely and simply be alleviated with an emergency abortion, instead, we've seen cases where doctors feel that they have to perform a much more complicated procedure, a much more invasive procedure, or C-sections instead of these emergency abortions to alleviate pregnancy complications or remove remains from a non-viable pregnancy via C-section, which can come with greater risk of fertility loss, and can come with greater risk of complications, and is obviously much more invasive and has a much greater recovery time.
And the most important thing, obviously, is that people experiencing these complications probably don't want that procedure performed on them if they could have the much simpler and safer emergency abortion.
And to your point, I think this history of hospitals holding people against their will, I think what's really interesting is some of that stems from these power dynamics between patients and provider obviously. Our health care system is very complicated, and a lot of patients go into this space not knowing their rights. And health care providers, hospitals know that and exploit that, and that's incredibly unfortunate. And then the other thing is when we accord fetuses or embryos personhood status, that is inherently at odds with the pregnant person's rights.
When there's that separation, that renders the pregnant person exponentially more vulnerable to state violence and policing of behaviors that otherwise wouldn't be an issue if they weren't pregnant. And we see that so often with criminalization cases — I've spoken to experts at the wonderful organization, Pregnancy Justice, which provides legal representation and support to people who are experiencing criminalization related to pregnancies.
One expert I spoke to told me that about 97 percent of cases they've worked on involving pregnancy-related criminalization, it wasn't under abortion bans or you're charged with having an abortion. It was for manslaughter, feticide, child endangerment, abuse of a corpse, all of these laws that are weaponized and misapplied to fetuses. And you know, to allow the state to control the behaviors of the pregnant person — behaviors that otherwise would not be criminalized.
JW: And I think that's a really important point, and you make this point in the book, and I think it's worth reiterating. It's not so much that these hospitals have the right to hold these women against their will but the system is so confusing that people don't know when they're told, you know, 'you can't leave,' they don't know that they have the right to do that.
And I want to talk about a case that you mentioned that really shocked me. It was the case of Tara Rule. So Tara Rule sued her provider, who she alleges denied her medication for severe cluster headaches just because she was of 'childbearing age' and the medication could cause a hypothetical fetus to have birth abnormalities.
Her provider has denied essentially all of her claims about what happened, and the lawsuit is ongoing.
You interviewed Tara for Jezebel back in 2023. What did she make of a potential fetus being prioritized over a living person? How should we try to understand this case?
KC: The framework of fetal personhood stretch out beyond there even being a fetus or embryo present in reality to just hypotheticals about someone's future fertility, someone's future children. The end game of fetal personhood, which is very much rooted in dehumanizing the woman, the pregnant person, even just the pregnant capable person. There are some scholars who've developed the term zero trimester where we live in this culture where even if you're not pregnant or you don't want to be, it's just assumed you're going to be someday.
And one more thing specific to Tara Rule's case. I think it's shocking and deeply upsetting and her condition is so painful that it's associated with higher risk of suicide. And the treatments are very few and far between, but she was told by this doctor, this surgeon that yes there is a treatment that could help, but it would impact your fertility.
And she didn't want to have kids and her partner didn't want to have kids and she was told point blank that if she were not of childbearing age then they would give it to her. But I think that at the same time that I spoke to her, there were numerous other cases of children, like actual children who suffered from these different conditions that required medications that were deemed to be abortifacient, so their pharmacists wouldn't prescribe them.
We hear about the endless, supposedly unintentional consequences of abortion bans like rising maternal mortality, child rape victims forced to travel across state lines, increased risk of criminalization, pregnant victims coerced by their abusers, all of that. But I very much argue that these aren't unintended consequences. This is what abortion bans function to do, which is to police and control pregnant people, to feed cycles of abuse, to be this tool in the toolbox of abusers. To enact racial violence and economic subjugation and essentially lower women and pregnant people and people who can become pregnant to this lowered class in our society.
And that is not unintentional at all.
JW: Yeah, I think framing it that way is really powerful when we're talking about these exceptions and we're talking about, 'Oh, well, we didn't mean to do this and that.'
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JW: I want to jump into some more recent news. In June, the Trump administration rescinded Biden-era guidance directing hospitals that take Medicare to provide stabilizing abortion care to patients in medical emergencies as required by the Emergency Medical Treatment and Labor Act.
What impact will rescinding this have on pregnant people?
KC: Even when Biden was in office, it was just pure chaos in terms of, yes, we have these laws, and state abortion bans might on paper have these very questionable and deliberately nebulous exceptions.
But what the Trump administration did with rescinding that guidance, I mean we're seeing a lot of these horrific cases even when we had that guidance in place. And I think it's just very disturbing to see that this administration is effectively trying to green light or give the OK for hospitals to further neglect and endanger their patients' lives in this way.
Under federal law there should be no ambiguity where there is just a requirement, whether someone's pregnant or not, where you provide that stabilizing care. You know, I think that we've already seen ProPublica's reporting on at least five cases of women who have died as a result of not being able to receive timely emergency abortion care. And the problem that arose was these hospitals were so afraid of — it's so morbid and dehumanizing and disgusting — but is she close to death enough for us to operate where we won't go to prison?
And the fact is that people are going to die because of pregnancy complications and something like sepsis, that arises when you are not able to remove remains from a non-viable pregnancy for too long and they stay there in the uterus. There is no linear timeline of what someone's condition will be when they're experiencing that. It could be, they might seem kind of stable and then within minutes are on the brink of death. And when we're using this wait and see approach, that is just fundamentally incompatible with providing this kind of care.
And the other thing is, even if someone does survive, their long-term health could be severely impacted. Their lifespan could be shortened. Maybe they want to continue to have children, but their fallopian tube collapsed from sepsis and their fertility is severely impacted. We've seen several cases of that in Texas in the lawsuit where these women who nearly died from Texas's abortion ban sued; just asking for clarity in the supposed exceptions in Texas's ban. And the state Supreme Court dismissed their case. And it's just horrific.
JW: And I don't want to spoil too much of your book, but I think another really important thing that you get into there is kind of how states are trying to hide some of this maternal death data, and trying to not make these connections between these abortion bans and maternal deaths.
I want to continue on some recent news. What are you following in the reproductive health space? What are you covering that you think people should be paying attention to?
KC: Yeah, I mean that's a great question. I just recently moved to working at the Abortion Every Day newsletter that Jessica Valenti started a few years ago. And when you are reporting on abortion every day, you see all of these different trends or these different strategies that anti-abortion lawmakers are deploying.
A strategy I think we're very much seeing among the anti-abortion movement is this pivot to framing or just equating taking abortion pills with coercion and abuse. Like those are the words and the allegations they really want to make. I mean, look at earlier this year in Louisiana where there was a mother who it seems or allegedly ordered abortion pills from a doctor in New York that she gave to her daughter.
That is the narrative that they are just going with and calling the provider a drug dealer who victimized the child, I believe is the quote from like the Louisiana Attorney General.
So co-opting and weaponizing terms like coercion and abuse when the reality is abortion bans are creating all of these new vulnerabilities for actual abuse victims.
Texas had introduced a bill to require wastewater plants to test for abortion pill remains or whatnot. When the FDA approved abortion [pills] over two decades ago, they had an environmental impact report already. And there is no environmental impact of taking abortion pills. So we saw that bill in Texas, but there was a bill introduced in Congress that's also about infringing on access to abortion pills by suggesting that people are contaminating the water systems by having them. And that is just not true at all.
JW: I want to talk about the history aspect of your book, and specifically the modern connections between the white supremacist movement and anti-abortion movements in the United States. How do these two movements align and which groups are most impacted by these bans?
KC: Yeah, absolutely. A book that I read, toward the end of writing this was, 'Liberating Abortion' by Renee Bracey Sherman and Regina Mahone. They excavate so much history that we have not been told before. And not necessarily even because it was very hard to find, but because journalists simply were not looking for the stories of women of color and certainly Black women who were providing and receiving abortion care on their own terms throughout history. Abortion bans and abortion restrictions always have carried the greatest harm and impact on people of color and communities of color, and build on this very long history of state violence against these communities.
Under white supremacy and under capitalism, communities of color often have the least resources that are increasingly being required to navigate all of these massive barriers to travel and access abortion and cover all of those different costs. And so when we have these laws that further shroud pregnancy itself in criminal suspicion where, pregnancy itself under abortion bans what's implicit in that is that all of our pregnancies are now effectively just shrouded in this criminal risk and potential for state surveillance and punishment. And, that very obviously carries disproportionate vulnerability among women of color, among Black women, among Indigenous women.
All of that is to say, when we operate at the nexus of criminalization and state reproductive coercion and pregnancy policing, it's very clear who is going to be targeted.
JW: I think covering this issue for a while, one thing you notice is when people don't mention racism and white supremacy, a lot of their coverage in theory kind of begins and ends at Roe and Dobbs and ignores this long history.
And this is kind of personal, so bear with me on this, but this is obviously a pretty white space covering reproductive health, covering reproductive justice. Do you think that because you're coming from a non-white perspective, you are seeing things, you are talking about things that are often missed in this space?
KC: That's a really great question. Definitely. And there have been a lot of different tensions and frustrations within the space of people who work within reproductive rights and justice. And I have spoken to a lot of people who are maybe the rank and file at some of these larger organizations and have felt very understandably frustrated.
At the end of the day, I guess, whether I realize it or not, I am very much guided by who I am and obviously what I care deeply about.
JW: Yeah. Thank you, Kylie. I've been impressed watching your career for a while now, your ability to combine these issues, to weave them in and out. To me, reproductive justice can never just be coverage of abortion. It can never just be coverage of birth control or one thing. This unified theory of reproductive justice is really important. And having people in this space who talk about that is so critical. And I want to touch on something else that you said earlier. You were kind of talking about the abortion hierarchy.
I think one thing I know we both think about when covering this issue is: How do we get people to care, and how do we highlight abortion stories that get people's attention without reinforcing this hierarchy or this idea that some abortions are morally justified and others aren't? How did you approach that when writing this book, and how do you approach that in your reporting?
KC: Drawing on my background of reporting and writing about gender-based violence is so often we're told there are — implicitly or explicitly — that there are good victims or bad victims, and we're similarly told that there are good abortions and bad abortions.
What's so important, or what I really try to emphasize is despite these like innately sexist and surface level supposed distinctions under rape culture, under abortion, bans, all survivors and all abortion-seekers are dehumanized and denied agency.
JW: You know, this is someone I think we've both interviewed before, Oriaku Njoku who used to run the National Network of Abortion Funds.
To me, they said joy is essential to covering this, to being a part of this movement. Reproductive justice requires you to have joy because you have to be able to believe in a better world. You can't just focus on kind of the bleak aspects of this work. And so I wanted to ask you, when you're covering this, when you're in this movement, what are you looking for?
How are you finding joy?
KC: We see every day that absolutely none of this is survivable without community. These conditions that we're all being put under are horrible, but it just has been incredibly beautiful to see the ways that people will step in to help each other and bridge those needs, even when we see so many cases of anti-abortion leaders in the state trying to make an example of this person or that person. That will never be enough to make people stop wanting to help each other, and that I think is really beautiful.
JW: Yeah, it's a beautiful closing message, and we're going to leave it there.
But thank you so much for joining me on the Intercept Briefing, Kylie.
KC: Thank you so much for having me and for all the amazing work that you all do.
JW: That does it for this episode of The Intercept Briefing.
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