Why I Refuse to Feel Hopeless About the Texas Abortion Case

Updated Thursday, Sept. 9, at. 12:55 p.m. PT.

We may finally have the opportunity to “build back better” and ensure not just a right to abortion but a guarantee of the personhood of pregnant people at every stage of pregnancy.  

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A Stop Abortion Bans Rally in St Paul, Minnesota, in May 2019. (Lorie Shaull / Wikimedia Commons)

I started my career nearly 40 years ago defending the right to choose abortion and then founded National Advocates for Pregnant Women, an organization devoted to ensuring that no person loses their civil or human rights because of pregnancy or abortion. I refuse to feel hopeless about the fact that Texas has, for now, successfully banned abortion in that state. There are many reasons why I will not despair. 

To begin with, I know that just as no law prohibiting alcohol or drug use has ever worked, no measure designed to stop all abortions has ever worked. (Just ask the women of Brazil where the ban on abortion led them to discover that the medication misoprostol could be used to safely and effectively to end a pregnancy.)

History confirms that women, out of love, out of necessity, out of shame and out of pride have always found a way to control their own bodies and their lives. Indeed, when abortion was a crime in America, women defied statutory prohibitions on abortion, violated public norms, and disobeyed clear religious proscriptions by ending unwanted or unhealthy pregnancies. In the 1960s, before Roe v. Wade, between 200,000 and 1,200,000 illegally induced abortions were performed each year in the United States. Intentionally or not, women who obtain abortions despite laws prohibiting it will be engaging in a form of mass civil disobedience—one of the tools that has often led to recognition and protection of fundamental rights. 

It is not just those seeking to end a pregnancy who will be affected, but it is every person with the capacity for pregnancy, including those who go to term. This is because anti-abortion ideology is not only used to justify limits on abortion, it is also used to justify arrests, detentions and forced medical interventions on pregnant people who have no intention of ending a pregnancy. This means that everyone with the capacity for pregnancy will have reason to oppose the Texas law and the U.S. Supreme Court’s willingness to deprive them of their rights. 


Everyone with the capacity for pregnancy will have reason to oppose the Texas law and the U.S. Supreme Court’s willingness to deprive them of their rights. 


As NAPW has documented, Black and Brown women were disproportionately targeted for arrests and other punitive state interventions. Black and Brown women’s votes ensured President Biden’s victory, and Black and Brown women continue to provide essential leadership for the fight for reproductive justice. Their experience and leadership should give all of us hope.

For more than 40 years, men and fathers have also relied upon Roe. For example, John Doe who, with his wife Mary, sought to be plaintiffs in Roe v. Wade did so because their heterosexual “marital happiness” depended on the assurance of access to legal abortion if their contraception failed. These men, who have also benefited from Roe and who can now face private lawsuits for helping their loved ones access abortion care, will be part of the movement to restore reproductive rights.  


These men, who have also benefited from Roe and who can now face private lawsuits for helping their loved ones access abortion care, will be part of the movement to restore reproductive rights.  


My hope is also bolstered by the extraordinary organizers, activists and health care providers in Texas and across the country who are working to find every possible way to ensure access to abortion care along with the equity and dignity that comes with that access.

I refuse to despair because I believe we learn from our past abortion organizing mistakes. 

For example, the pro-choice groups funding the fight against a 2011 Mississippi ballot measure that would have recognized personhood for fertilized eggs, embryos and fetuses, refused to connect that fight to another ballot measure, a voter ID law designed to limit people of color’s voting rights. The so-called personhood measure was defeated but the voter ID law passed. Voting restrictions and gerrymandering maintain white supremacy, of which abortion is but a part. Perhaps pro-choice leaders will never again make the mistake of seeing voting rights, white supremacy and abortion rights as separate issues.  


Voting restrictions and gerrymandering maintain white supremacy, of which abortion is but a part. Perhaps pro-choice leaders will never again make the mistake of seeing voting rights, white supremacy and abortion rights as separate issues.  


There is also hope because neither Texas nor the U.S. Supreme Court are the last word when it comes to fundamental rights. When the U.S. Supreme Court in the Dred Scott decision sought to resolve the slavery issue once and for all by upholding that heinous institution, Frederick Douglass refused to believe that the Supreme Court was the last word on the issue. Four years after that decision, the Civil War began, and four years after that the 13th Amendment was added to the Constitution, followed soon after by the 14th and 15th Amendments. I do not predict another civil war, but I do know there will be a reckoning.

Already, the Department of Justice has sued Texas over its restrictive new abortion law, saying the state legislature enacted the statute “in open defiance of the Constitution.”


I do not predict another civil war, but I do know there will be a reckoning. Sometimes a loss opens the door to something better in the future.


I believe we can count on the fact that people really do not like it when something they have relied upon is taken away. And sometimes a loss opens the door to something better in the future. 

Roe, decided in 1973, was a clear victory for the right to decide to have an abortion. That decision, however, came at the very beginning of legal recognition of the constitutional rights of women. It was only the year before, in 1972, that the Supreme Court for the very first time held that discrimination on the basis of sex violated the 14th Amendment. Thanks to the outrage that is being and will continue to be felt in response to the Texas law and the Supreme Court’s permission to implement it, we may finally have the opportunity to “build back better” and ensure not just a right to abortion but a guarantee of the personhood of pregnant people at every stage of pregnancy.  

Before then, though, there will be enormous suffering—by those who need and can’t get abortion care, by those trying to provide that care, by those who love and support them and everyone afraid of being sued for breathing the words—“yes, you are a person and I will help you get the health care, including abortion, you need.”

But, as we have seen before, no prohibition and no amount of pain or fear will ever stop a movement for fundamental human rights.

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About

 Lynn M. Paltrow is a lawyer and the founding executive director of National Advocates for Pregnant Women.