A Kentucky woman known by the pseudonym Mary Poe recently filed a lawsuit against her state, seeking an abortion for what was once a banal reason: because she wanted one.
Poe, who was about seven weeks pregnant at the time of the lawsuit’s filing, has since had an abortion out of state. But her attorneys argue that she still has standing to sue to overturn Kentucky’s two abortion bans – a six-week ban and a separate total ban – arguing that the laws violate the state constitution. This much, at least, is typical: lawsuits challenging abortion bans have sprung up across the country since Dobbs, with women and their families seeking to overturn bans, expand exceptions, or get some compensation from the state for the graphic, distressing, disabling or deadly outcomes that the bans have made them suffer.
The US supreme court justices who voted to overturn Roe in Dobbs cited the surge in activist litigation around abortion – a product of conservative investment in anti-choice legal shops – as part of their reason for doing so. Surely this must be a contentious, controversial issue that the federal bench is ill equipped to resolve, the judges from the conservative legal movement reasoned – because look how many complaints the conservative legal movement has filed against it!
This rationale was always disingenuous, but it has also been proved flatly wrong: Dobbs has not got the courts out of the abortion business. Instead, lawsuits over abortion have exploded. The anti-choice camp has pounced, seeking to further restrict abortion by banning pills; targeting reproductive rights advocates, abortion funds and sexual health educators; claiming rights for fetuses or embryos; or by asserting that men who father pregnancies have a right to keep women from terminating them.
But the pro-abortion rights side has been busy with litigation, too. Women who have been put at great health risk or made to suffer terrible, painful complications as a result of bans brought a class-action lawsuit in Texas. Bans have been challenged over and over again – on religious liberty grounds, on the grounds of state constitutional provisions securing the right to make individual healthcare decisions, under a federal law that guarantees emergency room treatment for patients needing stabilizing care, and under state constitutional clauses guaranteeing liberty, due process and privacy.
The Kentucky lawsuit is part of this latter camp. Mary Poe has cited Kentucky’s constitutional guarantees of individual rights to both privacy and self-determination, which she says have been violated by the bans. “I feel overwhelmed and frustrated that I cannot access abortion care here in my own state,” she said in a statement delivered via her lawyers at the American Civil Liberties Union. “I am bringing this case to ensure that other Kentuckians will not have to go through what I am going through, and instead will be able to get the healthcare they need in our community.”
This kind of desire for an abortion – the dignified simplicity of it – has been missing from much of the post-Dobbs abortion rights discourse. After the ruling, as trigger bans shot into effect across the country, clinics shuttered their doors, and scared women tried to discern their options, there was no shortage of tragic stories highlighting the brutality, indignity and gendered bigotry of the laws. But as the dust settled and members of the Democratic party, the major reproductive rights advocacy groups and the liberal legal movement surveyed the national scene, a consensus emerged that the face of the mainstream pro-choice movement would be the patient who experienced a medical emergency.
Women who had suffered horrific medical complications became lucid, moving and highly sought after tellers of their own stories, explaining how abortion bans has risked their health: Amanda Zurawski, for example, was denied an emergency abortion at 18 weeks, subsequently went into septic shock twice, and one of her fallopian tubes was so scarred that it is now permanently closed, inhibiting her future fertility. Kate Cox was denied an abortion after discovering that her fetus has trisomy 18, a rare genetic condition which is incompatible with life, and which, because of Cox’s own medical history, also endangered her fertility and life.
During her presidential run, Kamala Harris ran an ad featuring a woman identified only as Ondrea, who suffered a miscarriage at 16 weeks and was denied the standard care due to her state’s abortion ban. She developed sepsis and almost died. The ad features a shot of Ondrea in a bathroom, staring at her body in a mirror wearing only a sports bra. Her belly bears the scars of the emergency surgery that eventually saved her life – the surgery that she never would have had to have if it weren’t for the ban.
It does not diminish these women’s bravery, their suffering, or the wrongness of what was done to them to say that they are only one small fraction of those who need abortions in America. These are married, middle-class women with wanted pregnancies; Zurawski and Cox are both white. Cox has spoken movingly about her hopes to meet her future child, a girl; in the ad that features Ondrea, she and her husband hold a baby blanket. These are women whose suffering at the hands of abortion bans has nothing to do with a refusal or distaste for heterosexual, married, middle-class life. Their suffering can be made visible precisely because they are so acceptable.
Not so with Mary Poe. Poe may well be married, middle-class and white; from her statement, in which she talks about the difficulty of finding childcare, we can infer that she, like most abortion patients, is already a mother. But Poe is not suffering a physical emergency; she is not enduring any pain or medical misfortune that she can use to purchase social license. She is not, in other words, a woman whose claim to an abortion is based on a plea for mercy. She is merely a woman who seeks to be in control of her own life, one who believes that things like privacy and self-determination apply to her, too.
“I have decided that ending my pregnancy is the best decision for me and my family,” Poe writes in her public statement. “This is a personal decision, a decision I believe should be mine alone, not made by anyone else.”
This was not always a radical proposition. But in the post-Dobbs world, it has sadly become one.
Moira Donegan is a Guardian US columnist
