What Could a Biden-Harris Administration Achieve for Reproductive Rights?
Amy Coney Barrett’s nomination to the Supreme Court marks a constitutional crossroads in relation to sex discrimination and reproductive rights. While some states are poised to expand provisions, 2020 also saw more anti-choice women elected to congress than ever before. From a Catholic adoption agency in Philadelphia refusing to serve gay families to the Texas legislature ignoring its maternal mortality rates in favor of anti-choice legislation, sex discrimination and reproductive health issues have never been more politicized, under-covered and vulnerable to misinformation and conspiracy theories. What can America’s increasingly polarized relationship to sex discrimination and reproductive rights tell us about the health of our nation’s democracy? At this contested time, what could a Biden-Harris administration accomplish?
This panel brings together Rewire News Group’s Galina Espinoza and Imani Gandy to examine the future of reproductive justice under the next administration and explore what public discourse on sex discrimination and reproductive rights can tell us about the health of American democracy. Moderated by Sophie Maddocks and organized by the Center for Media at Risk, this event took place virtually on April 7, 2021.
Barbie Zelizer: Good afternoon, good morning, good evening. I wonder how much longer we’re all going to keep saying that? I’m Barbie Zelizer, Director of the Center for Media at Risk and I’m really delighted to introduce today’s organizer and moderator Sophie Maddocks.
An Annenberg PhD student and a Center Steering Committee member, Sophie may be more at the beginning of her progression to degree than at the end, but in the short time she’s been here she has been single-handedly responsible for orienting the Center toward feminism, misogyny, non-consensual pornography and image based sexual abuse. She is a whirlwind of energy already the author of three published manuscripts and recipient of a Fulbright Scholarship she’s also received a top paper award from the International Communication Association, multiple awards from The New School and the University of Cambridge, where she was before coming to Annenberg, and the prestigious Penn Provost’s Graduate Academic Engagement Fellowship with the Netter Center for Community Partnerships.
When Sophie tackles an issue it’s game over, and I mean that, in a very good way, please welcome Sophie Maddocks as she moderates “Sex, Power and Democracy: What Could a Biden Harris Administration Achieve for Reproductive Rights?”
Sophie Maddocks: Thank you so much Barbie for those really kind and generous words and thank you for giving me this opportunity to moderate this panel and welcome everyone. We’re going to have around 40 minutes of discussion in our panel, and then we will open up to audience questions, which will be run via the zoom chat window. Without further ado I’m really excited to introduce our panelists and get going. We have two panelists today; Galina Espinoza and Imani Gandy, who are both joining us from Rewire News Group, so I’m going to go ahead and tell you a little bit about them both.
Galina is the President and Editor in Chief of Rewire News Group, which is the only nonprofit media organization exclusively dedicated to reporting on reproductive and sexual health, rights and justice. An award-winning media executive and journalist, Galina has held previous leadership roles at NBC Universal, People and Latina and worked in every form of news, including print, digital, TV streaming and podcasting. She has interviewed world figures, including President Barack Obama and Former Secretary of Housing and Urban Development Julián Castro.
Her personal essays have appeared in the New York Times, USA Today and Marie Claire. Galina is also a member of the Screen Actors Guild, the American Federation of TV and Radio Artists and has appeared on virtually every major morning show and news network including the Today Show, MSNBC and CNN and has spoken on panels at prestigious events such as SXSW and the New York Latino Film Festival.
In conversation with Galina, we have Imani Gandy who is Senior Editor of Law and Policy for Rewire News Group, where she covers US law and courts and co-hosts the podcast “Boom! Lawyered,” of which I’m a major fan girl. Imani also began and continues to write The Angry Black Lady Chronicles. Imani is a recovering attorney turned award-winning journalist and political blogger. Previously, Imani founded Angry Black Lady Chronicles, winner of the 2010 Black Weblog Award for Blog to Watch and the 2012 Black Weblog Award for Best Political Blog. She received her JD from The University of Virginia School of Law in 2001 where she was a Hardy Cross Dillard Scholar and an editorial board member of the University of Virginia Law Review.
Thank you, both so much for joining us today I think we’ve put your Twitter handles in the chat so everyone can follow you if they don’t already. Welcome!
Galina Espinoza: Thank you Sophie we’re so thrilled to be here.
Sophie Maddocks: Awesome, so in this panel we’re going to discuss sex, power and democracy and really kind of dig into what a Biden-Harris administration could achieve for reproductive rights and gender justice. But I wanted to start by asking you both about Rewire.
Rewire in the last few years has become a really essential staple of my media diet in many ways. From the newsletter, to the excellent writing on sex and sexual health, to the podcast Boom! Lawyered, which Imani co-hosts. As a foreigner that podcast has really taught me everything I know about the US legal system. My first question to you both is what is Rewire’s mission and what does Rewire offer that’s really lacking in mainstream news coverage of sex and power?
Galina Espinoza: Sophie, as you called out, we are the only media organization dedicated to reporting on these issues — reproductive and sexual health rights and justice. And you may wonder, why is there a need for a dedicated media outlet on these issues? Isn’t mainstream media coverage enough? Well, I would ask you to take a look at what we’ve experienced these last four years in terms of the rise of misinformation and disinformation. We now live in a world of alternative facts. We now live in a world of fake news.
But what’s important to note is that while this new landscape may feel surprising to folks who have not experienced it before, this has been the story about what’s happening in the reproductive health space going back at least a decade. In fact, it’s the very reason Rewire News Group was founded —to fight back against misinformation on our issues, which all too often are told, through a political lens or in a very misleading way that has real life consequences.
I’ll give you one example of that, which is the simplest example that I can think of, because there are so many ways in which there’s real harm being done by false narratives on our issues. A couple of years ago, the Guttmacher Research Institute did an analysis of different websites that offer up sexual health content. It looked at more than 180 websites and found that nearly half of the websites had inaccurate information about contraception on them. Now think about it, you’re searching for information about birth control, this is a really vital piece of information, you don’t want to have inaccurate information, you don’t want to get this wrong. Think of the implications of that, and yet nearly half of the websites offering this information are putting out false information, whether deliberate or not. So, when you think about it that way, you realize that the need for fact-based reporting on these issues is incredibly vital and incredibly important and that’s really what we’re here to do.
Sophie Maddocks: Thank you so much, I wonder if Imani wanted to elaborate on any of the kind of the things that drew you to Rewire, or how Rewire changed the landscape.
Imani Gandy: Initially I was hired by Rewire to develop the legislative tracker that we have, which has all of the anti-choice legislation from 2013 to 2020. That’s seven solid years of just tracking all of the bills that were introduced, all of the bills that were passed and current.
I found it really important that there was no such a space, no central hub that people could go to figure out what was going on in their backyard. When I was hired by Rewire it was to do that project, and I thought that that was a pretty groundbreaking thing. Also at the time I was woefully unemployed and thinking that I could make a living as a blogger, which spoiler alert, you cannot.
This job came for me at a really important time, where I was just switching from private practice into being a journalist, trying my hand at journalism. Rewire has given me the space to grow as a journalist, and I think that’s really important. I think between me and Jessica Mason Pieklo, my work spouse / colleague, the two of us are the only journalism team that are covering reproductive rights and abortion rights law in the country, in the United States. I appreciate what Rewire has done for me and what Rewire has done for reproductive rights generally.
Galina Espinoza: One of the most alarming areas of misinformation when we’re reporting on our issues is in the pieces of legislation we look at and how many of them are actually rooted, not only in lies, but in medical impossibilities by folks who are not doctors and who don’t understand basic biology and how the human body works.
Imani, a couple of years ago in fact, broke a story about a legislator I believe in the Midwest, and Imani I’ll let you speak about this in more detail, who introduced a bill concerning ectopic pregnancies, which is when the fetus is developing outside of the womb. And [the legislator] somehow seemed to think that it was possible to reimplant the fetus inside the womb, which is just not even possible. And [he] was trying to legislate based on complete medical impossibility as yet on a particularly egregious example of the kinds of nonscientific actions that are taken when it comes to legislative abortion. I don’t know Imani if you want to speak about that story at all.
Imani Gandy: Yeah, I mean you, you got it right. It was in Ohio and this man thought that you could replant ectopic pregnancies, which is not a thing you can do. Jessica and I have been covering these medication abortion reversal bills, which posit that you can reverse a medication abortion after you take the initial pill if you get an injection of hormones. This is absolute bunk science. The “studies” that were conducted were based on sample sizes of seven people. It’s absolutely not possible to reverse an abortion, but these medication abortion reversal bills are now making their way overseas. A lot of what the Christian Right and Evangelical Right aren’t able to do here, they end up exporting our terrible abortion policies overseas. I think that you know makes what goes on in this country, a global issue.
Galina Espinoza: So, when you combine the lack of attention paid by mainstream media outlets to these issues and the amount of misinformation that that propagates these issues, you see the reason why there’s a need for an organization like Rewire News Group, that delivers fact-based reporting on these important issues.
Sophie Maddocks: Thank you, both so much. I think it’s so alarming to hear about this complete misinformation / disinformation and that’s been propagated for so long and I see Rewire being really on the front lines of this fight. It’s really interesting to hear you reporting back from the front lines about the things that you’re constantly debunking in your writing every day.
I wanted to ask, you’ve alluded to some of the biggest areas of misinformation / disinformation but, but what role has the mainstream media played in colluding with this and in polarizing the abortion debate? And how has this developed under the Trump administration as well?
Galina Espinoza: I’m so glad to hear you use the word polarizing because it gives me the opportunity to debunk one of my favorite myths, which is that abortion is a polarizing issue. It’s completely reasonable that most folks think that abortion is a polarizing issue based on the way that it is reported in the mainstream media.
But here are the facts, the facts are that 70% of Americans believe that abortion should be legal most or all of the time. 70%. I would challenge you to find any other issue in America right now that 70% of folks agree on. I mean it’s a really clear majority, even when you start to look at people of faith, which is a conversation that’s come up a lot since the election of President Biden as a Catholic President. The Pew Research Center last year did a poll of Catholics and more than half of them also believe that abortion should be legal in most or all cases.
There’s a real disconnect between the reality of the way most Americans feel about abortion and what we do see reported and what has emerged as the prevailing narrative, which is that abortion is a divisive issue. It’s not a divisive issue. Why is it that so many folks believe that it is? Well, I have a couple of thoughts on that.
NARAL Pro-Choice last year did an analysis, they hired an outside research group, to analyze the way abortion is covered in the media. What was most striking to me and what explains why abortion is seen as polarizing is that 80% of media outlets cover abortion through either the political team or the legal team. They do not cover abortion as a health care issue. They cover it as a political issue. When you want to talk about how an issue becomes politicized, well, it starts by reporting it through the lens of a political reporter.
Even more striking was that in the analysis of the stories that they looked at 65% of stories quoted a politician. Only 14% of stories quoted a doctor and fewer than 10% quoted a patient. The narrative around abortion is completely a political narrative, yet it is a medical procedure that’s either performed in a doctor’s office or that you get a prescription from a doctor for medication abortion. Yet it is not in any way rooted in healthcare when it is covered by the mainstream media.
So that’s why it’s become so politicized in parts, that’s why it’s viewed as so polarizing because it’s only ever recorded through that lens. I think there’s a real challenge in flipping that narrative and starting to center patients and providers at the center of that narrative. I would actually challenge all organizations to look at how they are covering an abortion and start to shift the thinking toward it being a health care issue, which is 100% of what it is.
Imani Gandy: And just further to Galina’s point, when you talk about the polarizing nature of abortion, you’re usually talking about certain kinds of abortion. The anti-choicers love to focus on later abortion, which is about 1.2% of the abortions that people have. They like to focus on these later abortions, because it tugs at the heartstrings, the idea of a 28-week pregnant person deciding just willy-nilly that they “just don’t want to be pregnant anymore… just kidding I’m going to have an abortion,” which is not something that happens.
If you’re 28 weeks pregnant or 25 or after 20 the likelihood is that you have some sort of medical condition, a fetal anomaly. This is usually a wanted pregnancy that people are terminating because their doctors are saying that that’s best for their health or they’re saying that that is the most kind thing to do, because forcing a person to give birth to a to a baby, that is not going to live very long can also be seen as cruel, depending upon what the patient wants.
What I find really interesting is thinking about the ways in which questions regarding abortion are posed. When you are polling people about their feelings about abortion, the way you phrase the question can really change the outcome and can change the answer. For example, there are six week bans these “heartbeat bans.” Well, first of all, embryos don’t have heartbeats, they don’t have cardiovascular system. So right out of the gate that’s a way that the media is sort of cementing this this anti-choice and narrative about heartbeat bans.
But besides that, if you were to if you were to ask a person, do you think that abortion should be permitted after a fetus has a heartbeat? People might say, well, no, because then they’re getting really close to [becoming] a person and that just seems icky. But if you explain to them that there is no cardiovascular system, that fetuses and embryos do not have heartbeats and then you say, well, what if I told you that banning abortion at six weeks means that most people won’t be able to get an abortion, because most people don’t know that they are pregnant at six weeks, so it’s basically a total abortion ban. You’re foreclosing that option for a lot of people. Well, the answer is going to change.
Similarly, with the Hyde amendment, which prohibits public funding for abortion, if you ask people, “do you think taxpayer dollars should pay for someone’s abortion?” They might say, well, no I don’t want my taxpayer dollars going to that. But if you change the question and say “Do you think that it’s fair that the government is picking and choosing who can access health care based on how much money they have,” then they might say, “well, no that doesn’t seem fair. You should be able to access all the panoply of healthcare services, irrespective of how much money you have or whether you’re poor.” I think it’s really important to focus on the ways in which we’re framing these discussions in order to really get to the root of this purported polarization of the abortion issue.
Sophie Maddocks: Thank you both so much. I know for the budding communication scholars in the room, the discussion of framing is going to be really useful for us in our in our research areas. I think it’s really interesting to hear about this politicization and false polarization and the disinformation / misinformation, the way these are all intersecting. I wanted to take a look back and ask your question that’s more historical to try and understand how we got here.
Rewire last year produced this really fascinating podcast, in which the hosts replayed and commented on the original Roe V Wade decision in 1973, for any who don’t know, this decision was the Supreme Court ruling that constitutionally protects a pregnant woman’s liberty to choose to have an abortion. I myself was like very surprised by many of the elements of hearing this court case and I wondered how you think that has shaped contemporary abortion politics in the US, and any kind of misremembering or misconceptions people have about that decision.
Imani Gandy: Well, I think one of the really important things to focus on is that Roe vs Wade was about the legal right to an abortion. It didn’t say anything about access to abortion. That’s critical, because if you have a legal right to an abortion, but there’s not an abortion clinic in your state or within hundreds and hundreds of miles and you’re poor and you already have kids and you have a job that won’t allow you to take time off in order to get an abortion, then we start to talk about the ways in which poor people, primarily people of color are foreclosed from the option entirely.
Roe didn’t do anything to address the structural inequality, the racial inequality and the economic inequality that is inherent in the health care system, that is inherent in the reproductive healthcare system. I think that the pro-choice, the mainstream reproductive rights movement, that sprang from Roe vs Wade sort of failed to address these inequalities.
I think that now, with the with the reproductive justice framework, and we can talk about that a little bit more… the TLDR of reproductive justice is the right to have children, the right not to have children and the right to parent any children you have in a safe and healthy environment. So if we transfer our thinking from a legal right to an abortion to a mode of thinking that focuses on access, and which focuses on what happens to people after they have these babies. Right, do we just force people to have babies and then leave them off on their own? Or are we going to talk about things like universal health care, childcare, all of these social safety nets, SNAP benefits etc. that help people, that help young people or any people raise children and do it in a way that they feel like they can raise a kid that’s going to live and be healthy. The great thing about reproductive justice is that it encompasses so many different kinds of what you would call “social justice issues” under this large umbrella. So reproductive justice includes climate justice and environmental racism, because if you’re living in an impoverished neighborhood where there’s dumping going on two blocks away, then that’s going to impact the healthfulness of your children.
For example, police brutality, we’re in the middle of the Derek Chauvin trial. Police brutality is a major reproductive justice issue, and a lot of people don’t think about it that way. They think about it as purely a racial justice issue. I have talked to so many black women over the years who have expressed real fear about having children and raising black children in this environment. If you are raising a kid, especially in states that have abortion bans where you’re forced to have a child, and then you can’t care for the child and then that child is gunned down in the street by the police and then those police officers are not held accountable for it, that makes it really difficult to look at this country as a as a friendly birthing environment. I think the laser focus on legal rights and Roe was problematic to the extent that it really left out a huge swath of people for whom abortion access is necessary.
Then my second major gripe with Roe vs Wade and the conservative discourse around it, is that they’ll often say things like “well there’s no right to an abortion in the Constitution.” As if the Constitution enumerate all rights, and the only rights that people have are listed in the Constitution. Well, that’s absolute nonsense, for multiple reasons.
The Supreme Court develops jurisprudence that becomes part of the Constitution, that becomes part of the constitutional rubric. The very fact that the Supreme Court said in Roe vs Wade that there was a legal right to an abortion up to a point, means that it’s constitutional. That’s what they ruled. Constitutional Law is not simply what the Constitution says, it’s also how the Supreme Court interprets the Constitution.
So, with respect to substantive due process rights, which are usually the rights that have to do with family, sex, childbirth child rearing, birth control, same sex marriage, interracial marriage, that’s a substantive due process as opposed to procedural due process due process, which is what we talked about when we think about Miranda rights and how police treat you if you are incarcerated. The substantive due process rights are not enumerated in the Constitution, but that doesn’t mean that they don’t exist. Particularly if you look at the ninth amendment, which essentially says that all of the unenumerated rights are retained by the people— that means abortion, that means contraception, that means same sex marriage, that means all of these sorts of “cultural issues” that have developed over the last 200 years that the framers did not contemplate.
I think it’s crucial to recognize that the Constitution is not set in amber, it’s a living and breathing document that is interpreted by the Supreme Court. If the Supreme Court says that there’s a right to privacy in the Constitution and the right to an abortion or contraception stems from that right to privacy, then that’s it. We don’t need to have a conversation about “well the framers didn’t write the word abortion down in the constitution.” Frankly, the reason why they didn’t write the word abortion down in the Constitution is because nobody cared. Nobody cared in the 18th century about abortion, they didn’t start caring until men in the American Medical Association decided that “lady business” was something that they should be concerned about. It was really about stopping midwives and doulas and witches from providing abortion care, from providing reproductive health care.
It’s really so steeped in patriarchy. It’s so steeped in racism. For example, the culture war about abortion really started as a way to push back on segregation. White supremacist and patriarchs needed a way to fire people up against integration, and so what they did is they picked another issue that they could get people fired up about and that issue happened to be abortion. Nobody cared about abortion when the founders were alive — that’s one thing that just really sort of grinds my gears — in our podcast Jessica and I really dug down into the actual arguments and found all kinds of things that were fascinating and interesting.
I would encourage everyone to listen to that podcast it’s a very short podcast you can probably knock it out in three hours. You learn a lot, and you hear what the lawyer arguments that the lawyers were making in the sexism that was steeped in the arguments that they were making. It’s really eye opening.
Galina Espinoza: I think Imani has done an incredible job laying out just how interwoven abortion is with so many other issues and just how complex it all is and how systemic so much of what we’re seeing is. For me, the real takeaway is that Roe v. Wade the legal decision is not nearly enough.
I think that for a long time there was a bit of complacency like, okay, we took care of that, abortion is now legal so we’re all good, right. But ever since then, and particularly in the last few years, we’ve seen this really, really picking up dramatically, is a chipping away at Roe in every conceivable fashion. Starting in January with the return of state legislators, this has been the most active legislative session ever as relates to abortion, with literally hundreds of pieces of legislation introduced, all of which are aimed at restricting access in various ways.
I think that’s really what the concern is, focusing on Roe is the wrong place to be focused right now. It’s really what’s happening at the state legislators including folks enacting laws that they know are outright unconstitutional, that they admit are unconstitutional. They are putting [the laws] forth merely in the hopes of getting it all the way up to the Supreme Court, knowing that there is now a conservative majority on that court that may just be willing to give them what they’re looking for, which is a rollback of abortion rights.
Sophie Maddocks: I mean there’s so many threads I would love to pick up from there, but for the sake of time, I would love to say one thing around this constitutional fundamentalism that Imani is referring to. I think it ties back to our discussion earlier about free speech and misinformation and disinformation and how it’s all part of this really powerful attempt to pull from this sort of Alt-Right fundamentalist reading of the Constitution. In terms of Roe v. Wade as Galina said not being enough and being chipped away so aggressively, my next question is really kind of looking forward to what Biden Harris administration could do, especially in the wake of some really exciting new judicial nominees. What do you both feel realistically could be accomplished in the reproductive rights, space and the gender justice space under this administration?
Imani Gandy: Well, you know Biden made a commitment that he was committed to repealing the Hyde amendment which bars federal funds from going to abortion unless it’s in the case of rape or incest or life endangerment. This is an amendment that is it’s just quite simply discrimination, it discriminates against poor people in the delivery of healthcare services and there’s no sensible reason for the government to be interfering in that way. If the government is going to provide a service if they’re going to say we’re going to provide health care to poor people under Medicaid, but no, we’re not going to provide this particular service when providing this particular service would actually help people not sink further into poverty. There are studies that suggest that people who have babies, who are not ready, who can’t afford them it sinks them further into poverty. Of course, the government doesn’t seem to be interested in helping people once that baby’s birth, so I think the repealing the Hyde amendment is critical.
It’s also critical to repeal the Helms Amendment. There’s a movement among some Democratic legislators in Congress to repeal the Helms Amendment. The Helms Amendment is a provision that says that foreign assistance funds cannot be used to pay for the performance of abortion as a method of family planning. This is overseas, right, so not only are we saying you can’t use funds here to pay for abortion, if we give foreign aid to other countries, none of that money can be used for abortion. Ironically, that money can be used if you have an unsafe abortion need medical care to fix the unsafe abortion seems to me it would make more sense to allow that money to go to reputable legal, safe abortion clinics, so that people can get the care that they need.
But you know, we are a very imperialist nation, we like to impose our values on other nations, even if those nations don’t have those values, simply because we have the money to sort of throw our weight around and force other countries to do as we say. Particularly with you know the Mexico City policies, the policies that ban funds going to clinics or people that even refer someone to an abortion, this is just another form of imperialism is what it is. It’s another way that we as a country outsource our very conservative Christian Right Evangelical views to places that really desperately need this sort of reproductive health care. So those are two things.
The third thing, we’re going to get into the birth control benefit, the contraception mandate in the ACA. Obama signed the ACA, the ACA includes provisions that were supposed to bring about equality in in healthcare services delivered to men and to women. Part of that equality was to make birth control copay free. So if you are an employer and you offer health insurance to your employees or if you’re a school offering insurance to your students and employees you have to offer birth control coverage, you have to include birth control coverage. Studies show that insurers would much rather pay for contraception than have to pay for birth. It’s much cheaper to just hand out birth control pills than to birth babies. Frankly, I think it’s inappropriate for employers, unless you’re legitimately a church, I think it is inappropriate for for-profit companies to couch themselves as religious organizations somehow. Like Hobby Lobby, where they sell yarn and crafts is somehow a religious organization. That’s nonsense to me.
What you’re doing is you’re imposing your views, your religious views, on to people who may not adhere to those views. We saw under the Trump administration that not only was he willing to provide religious exemptions to people who have religious opposition to birth control, because they think it’s an abortifacient, they think it causes them abortions, which it absolutely does not. We see that these corporations want to use religious beliefs to exempt themselves from birth control, but Trump also said now you can just say, “I’m morally opposed to it.”
You don’t even have to couch it in any sort of religious terms, in any terms that the Constitution protects. You can just say, “I’m morally opposed to birth control” and then that’s it. That can’t be right, we cannot permit people to impose their religious views on other people. That’s what these “religious freedom” laws are – they’re religious imposition laws. They’re religious imposition laws that inure to the benefit of seemingly only Christians, because you’re not going to see cases where the Supreme Court is allowing Muslims or Jews or Buddhist or anybody else to exempt themselves in the way that they are willing to let Christian Evangelicals exempt themselves because they’re powerful lobbyists, they’re able to ask the administration to do these things. They’re able to insert themselves into the government.
Under Trump HHS was filled with Christian Right-Wingers, people who work for Alliance Defending Freedom, which is a Right-wing Christian law firm that sues to strip LGBTQ rights and to strip abortion rights from people. The fact that the Biden administration is moving away from that is a really clear sign that we can make some progress in this arena. I think that that’s really important.
Finally, I would say in terms of sex and gender rights generally, there’s this overwhelming deluge of bills that are attacking trans people, that are attacking trans youth. In Arkansas the legislature just overrode a veto from [Governor] Asa Hutchinson. Hutchinson had vetoed a bill that strips trans youth of healthcare. So now Arkansas is saying you’re not even allowed to get this kind of health care. That’s just wrong, for one, and it’s a departure from what the Obama Administration did.
The Obama Administration really did make an effort to make sure that trans kids were protected. I think that Biden can continue that work or can get back to that work under Title IX by starting to refuse federal funds to schools that don’t let trans girls play on girls’ sports teams or use the proper locker room and that sort of thing. I think the Biden-Harris administration has a real chance to be transformative but it’s going to take some work, because these are fraught issues.
Galina Espinoza: There is actually an action that President Biden can take that does not involve policy, but that would be transformative. He can say the word abortion. He has been in office now for almost 100 days and has yet to say the word abortion.
Why is this important? Well how can you actually start to tackle an issue or have a conversation about something if you can’t even name it. There is so much stigma around abortion to begin to begin with, not saying the word abortion only compounds that stigma. I think the more that we can start to include the word abortion and conversations at the highest levels of government, the more we can move toward having actual thoughtful conversations about abortion and the actions that need to be taken. There’s a real narrative shift that needs to happen that we’ve been talking about.
I do want to share this additional stat, which is that one in four women by the age of 45 will have had an abortion. One in four. When you hear advocacy organizations talking about how everyone loves someone who has an abortion that’s where this comes from. Abortion is not some outside “other” issue that most women never contemplate. It is core to the reproductive health journey that we all undergo. I think that it starts with talking about abortion and using the language. I mean, can you imagine President Biden issuing a statement about any other issue, whether it’s trans rights or whether it’s about preserving voting rights, and not actually using the phrasing “voting rights” or “trans rights.” That’s what he’s been doing with abortion, he’s been relying on the pro-choice framing which is really just kind of a tap dance around what we’re really talking about. Abortion is a medical procedure, and it is something that should not be shied away from. I think it will be a really important and impactful moment when he finally does say the word, and I hope he gets to that soon.
Sophie Maddocks: I think that silence also is what allows disinformation and misinformation to foster so much, when there is there is really no ability to actually say the word and what it means. Also, I’m glad you raised the Arkansas anti-trans bill because I wanted to just draw back, when you think about imperialism, also the kind of corporate funders who back all of these bills your Walmart’s your AT&Ts and the way that the access to funds is restricted at the user level, but also the funds that have been pumped in at the corporate level.
I wanted to ask both of you add two more questions before I open up to audience Q&A, one more depressing and one more optimistic. The first is about Amy Coney Barrett and I know that so many aspects of her ascent to the Supreme Court have left many of us reeling. I wondered how you process that and also at the broader level how states are responding to her.
Imani Gandy: I mean, I don’t think I’ve yet processed the fact that she’s on the court. In my mind Ruth Bader-Ginsburg is just sort of haunting the court, just sort of whispering into everyone’s ear. But in a very real sense, the ascendance of Amy Coney Barrett has signaled to conservatives, signaled to anti-choice forces, that now is the time to really go hard in attacking Roe. As Galina mentioned earlier, states are passing patently unconstitutional bills, bills that are just so wildly unconstitutional it makes me uncomfortable.
They say out loud in the media, we know this is unconstitutional, but our goal is to get this case before the Supreme Court so that we can finally get a ruling as to whether or not Roe is still good law. You’re seeing a lot of states beginning to attack viability as a standard. Because right now the rule is that you’re entitled to get an abortion up to the point of fetal viability.
State cannot say you can’t get an abortion before feeling viability. Now of course states can regulate from day one up until day whatever, which increases burdens and increases access restrictions. But they can’t foreclose the opportunity for abortion. Some of these states are doing really tricky things. One of the things that just drives me crazy is that they are trying to make the undue the undue burden framework set forth in Casey, they’re trying to apply that framework to gestational bans.
Let me explain what I mean by that. In Planned Parenthood v. Casey, the Court said you can’t throw up substantial obstacles in the way of people seeking an abortion — you cannot unduly burden the right to an abortion. [But] what an undue burden is a very subjective inquiry, right? Is traveling 200 miles and undue burden? Is traveling 150 miles? Is requiring doctors to get admitting privileges at hospitals that refuse to give them, is that an undue burden? These are all questions that a judge can answer without really looking at a lot of objective facts or by looking at objective facts and interpreting them in a way that they find more suitable.
The problem with trying to force an undue burden inquiry onto gestational bans is that the Court has already said that pre-viability abortion bans are inherently an undue burden. That’s just the bottom line. There’s no reason to go through that Planned Parenthood v. Casey analysis when it comes to, for example, a six-week abortion ban, because a six-week abortion ban is inherently an undue burden and it’s unconstitutional. That’s it. But they’re making these arguments to say well, “the six-week abortion ban isn’t really a ban, it’s a regulation. And because it’s a regulation, regulations must be shoehorned into this undue burden analysis.” But a ban is a ban. It’s not a regulation. They’re trying to say, “we’re not banning abortion at six weeks, we’re just regulating the time period during which you can get an abortion.” Which is absurd, it’s just semantics. It’s a ban. They’re making these arguments and trying to throw anything at the wall in the hopes that it will stick with the hope that Amy Coney Barrett can find something that she can hang her anti-abortion hat on and then turn that into law.
One of the other really alarming things, and I think that Amy Coney Barrett is all for this, is attacking abortion providers’ standing to sue. Standing to sue means that you’re going to court, you have an injury and you think the Court can redress that injury. For decades, abortion providers have been filing lawsuits on behalf of themselves and on behalf of their patients. Now states’ legislators are saying, “well, abortion providers shouldn’t be able to sue on behalf of their patients because there’s an inherent conflict of interest. Abortion providers are trying to say that these ‘health and safety’ laws are unconstitutional, an undue burden, which means they’re trying to not follow the health and safety protocol that we, Texas, for example, have imposed.”
That’s just nonsense. Abortion providers are some of the most compassionate people, especially because they are working in a field that is actually life threatening to them. We’re talking about people who have to wear Kevlar to work. So having states argue that providers are inherently opposed to their patients’ interests just increases abortion stigma, increases harassment and increases clinic violence, and I think that that’s really dangerous.
Galina Espinoza: Amy Cony Barrett is really the culmination of a long a long tail strategy adopted by the Republican Party to reshape the federal judiciary. In fact, last year we started up a franchise called Trump Judges because Trump was filling vacancies so fast so fast with so many terrible nominees and we wanted to start exploring what the impact would mean for us and our rights for decades to come. Trump rammed through more than 200 nominations with the help of Senator Mitch McConnell. We cannot overstate the damage that was done to the court system as a result and the ramifications of that in terms of the rollback to our rights that we’re going to be seeing, quite frankly, for the next generation.
Amy Coney Barrett is just the pinnacle of that, [getting her on the Court] is the culmination of that strategy. It is something we should all be concerned about. You mentioned that President Biden has announced his first slate of nominations for the Federal judiciary and it’s certainly encouraging to see him right out of the gate taking this on as the important issue that it is. But it’s going to take a long time to undo that damage.
Sophie Maddocks: I’m going to open up for audience questions because I’m sure many folks would love to pose some questions to you both. Our first question is from Barbie Zelizer.
She says, “Wow! Thank you all for a terrifically illuminating discussion. It’s hard as a media scholar to let go of your very important point of constructed polarization in regard to the framing of abortion (or in Biden’s case not calling it by name). Do you see this as emblematic of other marginalized issues, and if so, what might be the shared characteristics of what else gets demeaned by this process in the media and refused medical / health framing? I wonder too if the inability to recognize a health frame draws from most journalists’ own lack of expertise in the area?”
Imani Gandy: Yes, I think that abortion is one of those areas that people who sort of toil in the abortion world are constantly doing it. I have been doing it for a decade, Jess has been doing it longer. We are so ensconced in these issues that I think it becomes difficult for us to step outside the abortion world and view it from how mainstream, just ordinary people would. How do non-lawyers, non-abortion advocates view it? I think that counts as well for the media.
The media tends to focus on abortion when there’s a huge bill, right, when there’s a 20-week-ban in play or when Alabama bans abortion. But they are not really so tapped into the issue that they’re able to talk about it in the right way. What ends up happening is that abortion is talked about and treated as if it’s something other than healthcare. Then that framing sort of just percolates throughout the media.
Then you have Jess and I and other people at Rewire News Group, some of our freelancers and our staff writers, who are desperately trying to push back on that narrative. But we’re a small organization. It’s going to be hard for us to go up against the New York Times and the Washington Post and some of these other mainstream publications that not only report inaccurate information at some times, but report in a framing from the anti-choice side. Even the simple fact of calling these people “Pro-Life” is discussing this from the framing of the anti-choicers. Because Pro-choice people are also pro-life. I would argue that a lot of anti-choicers aren’t pro-life, they’re pro-birth.
The more we can begin talking about abortion in the healthcare framing and encouraging people in the media to talk about it, to call members of the media when they talk about it incorrectly and correct them — in a nice way to not make people angry —so that we can actually connect to people, I think that that’s really important.
But yeah, I do think it does stem lot from some journalists’ lack of experience in this area. It’s a difficult area. It’s an area that I’ve spent the last 10 years learning and I still don’t know everything so it’s really hard to expect a journalist who isn’t on the reproduction beat to understand all of the ins and outs of these laws and the ways in which abortion is framed talked about and legislated.
Galina Espinoza: I think even beyond that, something that has become very clear these last few years, most media outlets don’t know how to handle it when folks outright lie to them, and when there’s just a bombardment of lying.
Think of how media outlets struggled to cover from day one the inauguration, false reporting of how there had never been crowds that size at the inauguration, despite photographic evidence to the to the contrary. Think of how the media twisted themselves into a pretzel trying to figure out how to reconcile the official statement, the lie, with what they knew to be true. Think of all of the moments during the Trump era when that proved to be true. Now look at how this has been happening in abortion for more than 10 years, an issue that is under-covered, that is not covered by the right people.
The lies get reported right alongside the truth so you don’t know how to distinguish between fact and fiction anymore. That’s really what happened with this narrative. Even seeing how the media reports on these pieces of legislation that be are being introduced, and you know, quoting State Senators saying, “we are doing this to protect the health and safety of women” and presenting that as “oh, this is why they’re doing it” and not in any way trying to parse that or break that down or to point out how this completely flies in the face of the health and safety of the very population they are purporting to help. There has not been that kind of rigorous analysis and questioning and push back because the lies have been so blatant, have been so overwhelming have been so consistent that it has almost become an adopted part of the narrative. I don’t think we ever thought that this could happen in general, but it has happened in general and it has its roots in what was happening a decade ago in this space.
Imani Gandy: And also, to answer one of the other questions that Barbie posed about whether or not this is emblematic of other marginalized issues, I think it definitely is if you look at the way that the media is talking about trans health care.
We’ve got Arkansas that has just banned health care for trans youth. We’ve got a lot of cisgender white men who are making very loud proclamations about puberty blockers and hormone treatments. They don’t know what they’re talking about, but they are able to coat their bigotry in this thin veneer of concern, like, “I’m not transphobic, I’m just concerned about trans youth. Are we pushing trans youth too far into ‘transgenderism’ when maybe in a few years they’ll grow out of it?” As if being trans as a phase, as if trans youth don’t know what’s going on with their own bodies, their own gender identities. It’s not painted as a health care issue it’s painted as a cultural issue. Abortion suffers from that same problem —not a health care issue it’s a cultural issue. Both of them are health care issues!
Galina Espinoza: We’re treating politicians as experts on these issues when they truly prove time and time again that they know nothing, not even basic biology.
Imani Gandy: Right, right and treating white cisgender men as experts on trans issues to the exclusion of actual trans people who are speaking about their own experiences. I think that’s really problematic.
Sophie Maddocks: I think in a way that links back to the statistics Galina was sharing at the beginning about how very few women who’ve had an abortion are quoted in articles about abortion and the way in which basic journalistic practices of getting quotations from different sides of an argument seem to be devoid from coverage of reproductive rights.
And we have a question from Richard Stupart, “Thanks so much for such an incredible conversation. On Galina’s observation about the media struggling to cope with outright lying, do you see (or hope for) a change in reproductive health coverage out of the lessons learned by the media post-Trump?”
Galina Espinoza: I wish I could be that hopeful, but I think truly until the lens in which abortion is covered changes, we’re not going to see any kind of change. Until we start to draw the connections between abortion and gender equity, we’re not going to see the conversation change. Until we have a President who can say the word abortion, we are not going to see a change. The stigma runs so deep and it’s so widespread that there needs to be a conscious decision to overhaul this narrative and it requires multiple changes to be made.
I would love to see mainstream media outlets start to staff healthcare reporters when covering abortion, we’ve been waiting a long time for that. I’d also love to say that Rewire News Group is part of a big community covering this issue, but we’re not. We are often the only voice out there talking about these issues through the patient and provider lens and I don’t see that changing for a long time, unfortunately.
Sophie Maddocks: When you go on the Rewire website, you see news that isn’t being covered anywhere else. You see these really important stories and scientific stories about reproductive developments in reproductive technologies. You think, I haven’t seen this in any other news organization so it’s really amazing.
We have a question from Jeanna Sybert saying, “Thank you so much for this! I was wondering the role the pandemic has played in either your approach to covering abortion access/reproductive rights/etc. or, perhaps, if it’s been used rhetorically by opponents to attack or distort these issues?” I know that makes me think about Arkansas banning telemedicine for abortion pills so also I would tack on a question around what else is being added to the fuel to the fire of anti-abortion activists under COVID?
Imani Gandy: Yeah, anti-abortion activists really sort of exploited the pandemic to further their anti-choice goals. It was really gross in a way. In the beginning of the pandemic, I mean we’re already more than a year into it, but in the beginning, we didn’t know much about COVID. There was a shortage of PPE and there were healthcare workers who were just drowning in work and trying to care for these patients. Rather than trying to help the healthcare workers by, for example, imposing lockdowns that would have gotten more people off the street, kept people at home, kept people out of hospitals.
You had state governors and mayors even imposing lockdowns, but then exempting clinics and clinic protesters from those lockdowns. Protesters were perfectly allowed to go into a clinic, to go stick their head in people’s cars unmasked to try and get people to not go into that abortion clinic. That was fine, disallowing them to do that would somehow be an infringement on their religious liberty. At the same time, they were making completely outlandish and untrue claims about the ways in which abortion clinics are using up PPE that could otherwise go to healthcare workers who are fighting COVID, when they weren’t.[Abortion providers] don’t use a lot of PPE, there’s no PPE besides a mask that needs to be used when you’re doing a medication abortion, you’re just handing out pills. There’s even a case right now at the Supreme Court about whether or not a patient has to go in-person to pick up a pill, or whether they can just get on a zoom call or a Skype call and talk to their doctor, get instructions on how to take the pill and complete their abortion at home. This just goes back to the ways in which abortion is regulated in a way that other healthcare procedures are not.
The anti-choicers have really, really exploited the pandemic, tried to further stigmatize providers as people who are unwilling to do their part in the COVID pandemic because they think that people still need abortions. Well yeah, I mean abortion is healthcare. You wouldn’t say, “oh those oncologists are really screwing everything up because they keep insisting on seeing cancer patients.” We don’t talk about any other kind of healthcare the way that we talk about abortion, and maybe trans health care and that’s it.
In terms of the way that we cover it, we just made a point to insist that abortion providers are doing the best that they can under difficult circumstances, but it was incumbent on state and Federal Government to make it easier for them by, for example, permitting telehealth telemedicine. Abortion providers are honestly some of the greatest people I’ve ever met. They do this very compassionate work under very difficult circumstances in an environment where people are constantly harassing them. The clinic violence, especially in the wake of the Trump administration, has just been out of hand. I think the anti-choicers have a real responsibility to try to rein that in. I know they won’t, but it would be nice if they would because it’s dangerous, not just the patients who have to deal with perhaps COVID infected people at protest, but also to providers who are having more stigma he got them.
Galina Espinoza: I also think the pandemic was a great microcosm, or maybe a macrocosm if that’s even a word, of what happens when you politicize a health care issue. Think about the recommendation to wear a mask. This is a scientific recommendation to protect yourself and others. This is good medical policy. What happened when it became politicized is that you can’t get people to wear masks. You increase dangers, you have more deaths. I think that’s a great thing to keep in mind when we think about abortion and how politicized it is it puts people’s lives in danger. Going forward, we really need to be looking at abortion through the lens of patients and of health care, because otherwise you create this incredibly dangerous situation that serves no one.
Sophie Maddocks: I’m going to take a moment to ask a final question. I’m not a scientist, but it feels like we’re in a moment where there are really exciting advances in in our ability to control our own reproductive rights. From, as you were mentioning, self-managed abortion through abortion pills, missed period pills, emergency contraception. Looking into the future, what do you see as some of the more interesting or exciting or potentially liberatory elements of the future of reproductive technologies.
Imani Gandy: First of all, I think it’s really important to make assisted reproductive technology less classist. Right now we have a situation where a lot of people who are suffering from infertility are not able to afford IVF, it’s so expensive. Beyond that, I think that it’s really critical to end restrictions on telehealth and end restrictions around medication abortion. Especially in the wake of the pandemic more people are choosing self-managed abortion. We actually did a special issue in February about medication abortion, and about how medication abortion is the future of abortion because it’s so much easier, people can do it on their own time.
Jessica talks constantly about points of access and addressing geographical disparities and access. Allowing medication abortion to flourish and thrive would really take care of these problems. It would ameliorate the problems of people, for example, in rural areas who don’t have access to clinics, who have to drive hundreds of miles to get to a clinic or even to a hospital.
When you talk about the future of reproductive technology, you know you can’t but help think about artificial wombs. I feel like artificial wombs are just the pinnacle right. If they can normalize it, if they can get it to the point where artificial wombs are common and are used, that’s good for some people who are suffering from infertility. It’s bad, to the extent that they’re going to use that as further evidence that people should not be able to get abortions. Because we can just take the fetus in your room and implant it into this artificial womb, now we can just criminalize abortion, because you don’t need it. I think that it’s up to every person to decide what they want to do with their body. Do they want to have whatever’s in their body implanted into an artificial womb? Maybe, maybe not. That’s not a decision that should be left up to legislators.
Finally, it’s really important to integrate healthcare and abortion care. Just smash them together, because they’re the same thing, abortion is healthcare. There are birthing centers for example, CHOICES, Rewire News Group did a podcast series on this. This is a new-ish birthing Center in Memphis, Tennessee that offers a panoply of reproductive services reproductive health care services. I think that that is key, especially when we’re talking about access, to start doing more pop-up birthing centers that offer everything from abortion to childbirth. I think that’s better for people who are able to become pregnant.
Galina Espinoza: I think there’s certainly a lot of exciting disruption happening in this space on the healthcare front. I would love to see a similar kind of disruption happening in the coverage of these issues and on the media front.
Sophie Maddocks: Thank you, both so much, and thank you so much for this discussion today I think I’ll wrap up considering the time. This Panel has been so helpful, even for me in processing these kinds of contradictory moments that we’re having right now in this space. I wanted to thank Barbie Zelizer, Emily Plowman and Joanna Birkner from the Center for Media at Risk for making this panel happen. Thanks so much everyone in the audience for your attention and your questions and go listen to the best podcast ever, Boom! Lawyered.
Galina Espinoza: Thank you all so much for this opportunity we appreciate all of the support. And, yes, go listen to Boom! Lawyered.
Imani Gandy: Yes, thank you, thank you, we really appreciate it.
Galina Espinoza is the president and editor in chief of Rewire News Group, where she leads a team of editors and journalists reporting on reproductive and sexual health, rights, and justice. Galina is a 25-year journalism veteran and one of the most prominent Latina voices in media leadership. She brings experience as an editorial director and a journalist covering issues central to RNG, including reproductive health-care access, gender violence, and more. Follow her on Twitter @GalinaEspinoza.
Imani Gandy is Senior Editor of Law and Policy for Rewire News Group, where she covers law and courts and co-hosts the RNG podcast Boom! Lawyered. Imani also began and continues to write the Angry Black Lady Chronicles. She is a recovering attorney turned award-winning journalist and political blogger. Follow her on Twitter @AngryBlackLady.
Sophie Maddocks, a Steering Committee Member of the Center for Media at Risk, is a Ph.D. Student at the Annenberg School for Communication and a Research Fellow at the Netter Center for School and Community Partnerships. Sophie’s research explores individual, institutional and legislative responses to online abuse and gender-based violence. Sophie’s most recent publications focus on non-consensual pornography and deep fakes. Follow her on Twitter @Sophie_J_J.