Lessons from Ohio
This is the post-Roe reality. Horrifying stories relating to abortion bans are going to continue — and must be told. So, what can we learn from these past weeks?
The 10-year-old rape victim from Ohio who went to Indiana to get an abortion because she was six-weeks-and-three-days pregnant and Ohio’s six-week abortion ban has no rape or age-based exceptions should not have to be the subject of news stories in the wake of already unimaginable trauma.
But, her story is important — an essential part of sharing responsibility for the reality in which we are living. And, yes, stories are a part of the way of holding government officials accountable for the horrors that will befall families and individual women and other pregnant people without the protections of Roe v. Wade.
These stories will not be stopping, and they mustn’t stop. They will undoubtedly become more common, in fact, as ever-more-harsh abortion bans go into effect across the country.
So, living in this moment, and living in this country, I wanted to start off the week by pulling together some of the lessons that I think we can take from these past weeks. Many of these points, ultimately, are not new, some I’ve made previously on Twitter, and many apply in many other contexts as well. But I think they are important, and I wanted to pull them together in one place. So, for here and for now, here are my lessons from Ohio.
Law Dork, with Chris Geidner, is a reader-supported publication. Signing up is free, so please subscribe today!
QUESTIONING REALITY: Claims that vulnerable people are being harmed by abortion restrictions and bans will be aggressively questioned.
This is contrasted with the fact that “official” explanations continue to be given the presumption of correctness even in the midst of unending evidence that those explanations — particularly from police officials — are far too often lies. In the Ohio case, the original story came from the doctor in Indiana, on the record, who performed the abortion. It took police and prosecutors weighing in, however, to convince some people that the child even existed. As Gillian Branstetter noted, the result is “doubting the professions impacted by abortion bans and trusting the the people tasked with enforcing them.”
This questioning is also contrasted with the extensive evidence of how abortion was regulated and — as Leslie Reagan details in her book, When Abortion Was a Crime — prosecuted before Roe. Even where women weren’t prosecuted themselves, they often were coerced into testifying against abortion doctors, for example, among other steps. (I mentioned this history and Reagan’s work in this column for Bolts.)
Finally, it is contrasted with the extensive evidence of how pregnancy outcomes were investigated and prosecuted regularly even under Roe v. Wade, as detailed in the National Advocates for Pregnant Women’s amici brief in Dobbs v Jackson Women’s Health Organization. (I discussed this issue and brief in this article at Grid.)
Coverage of these stories must provide that historical context as part of the understanding for why these stories should not be surprising to Americans in the post-Roe landscape.
NEW CLAIMS: Anti-abortion advocates and lawmakers and other government officials who have spent years fighting for an end to abortion — and passing laws aimed to do so — will claim that awful cases that catch the public’s attention are not covered by relevant bans or are covered by exceptions.
They will do this even though these laws often are ambiguous on key, relevant points — making their claims nothing more than arguments, at best.
They will do this in an attempt to suggest that the laws are not as strict as they could appear to be — despite the fact that advocates and lawmakers and other government officials have fought for total bans on all abortion and are fighting for stricter bans with harsher and more expansive punishments to this day.
They will do this in part because, even when it’s a government official making the statement, their after-the-fact claims in the media aren’t legally binding on the prosecutors who would be choosing whether to charge an individual. (In Ohio, for example, Ohio Attorney General Dave Yost made claims on TV about that the 10-year-old pregnant rape victim didn’t need to leave Ohio to get care. In addition to the Ohio Legislative Service Commission making clear that there is no exception for such a case in the law, Yost is yet to do anything formal from his office to back up his claims. For example, he could issue an Attorney General’s opinion laying out his office’s interpretation of the exceptions under Ohio’s six-week ban. He has not done so.)
Anti-abortion advocates and officials are making these claims to make their position more palatable in the media and to the public — even as those who could face investigations or prison under the laws are given no guarantees about how any given prosecutor might choose to enforce the law.
Medical providers (and potentially others, depending on the state and the law) remain at risk of criminal prosecution or other penalties, regardless of tweets or media appearances. Coverage must make clear the distinction between individuals’ claims and authoritative statements of prosecutorial policy. (Even then, however, questions would remain about whether other officials — such as licensing boards — could enforce abortion-related consequences, and coverage should reflect that. I wrote much more about these enforcement questions in the Bolts column.)
MEDIA MUSH: Media, if not actively joining in on the questioning of vulnerable individuals’ stories, too often will report on these stories as political fights and not about harm to individuals.
The Wall Street Journal editorial board declared, “An Abortion Story Too Good To Confirm,” on July 12. Less than 24 hours later, the Columbus Dispatch reported that a man was charged in the case.
Even when the media doesn’t serve as an active antagonist, reporting often will trivialize the issues and fail to focus on what policies cause harms to individuals and who is being harmed. These stories often then become meta-stories about ~difficult politics~ in ~a polarized time~ when ~the two sides can’t even agree on facts~ instead of stories about pain and suffering — and criminalization and death — caused by policies that limit abortion.
The Associated Press led a story by stating, “It took only four paragraphs in a regional newspaper to ignite a media conflagration over abortion that in two weeks engulfed President Joe Biden, the partisan press and some of the country’s top news organizations.” (Thanks, Dan Froomkin, for pointing out this article to me.) Somehow the Indianapolis Star, which broke this story, gets blamed for starting this fire — that’s what a conflagration is! — and not the Supreme Court, or lawmakers in Ohio, or even the members of the media who suggested the story was a hoax or called it “Too Good to Confirm.”
The New York Times, for its part, noted in one story how “[c]onservative news media questioned whether the girl existed.” Then, in an unbelievable both-sides next paragraph, the Times stated, “People on the left were quick to jump on and criticize any media report that noted how little was known about the girl and the circumstances of the crime.”
There is good reporting, lots of it, happening in this moment. But beware of reporting that questions whether new stories of specific abortion-ban harms are real while ignoring the historical reality that pregnancy outcomes have been policed for the past 100 years or that ignores the cause of the trauma resulting from new (or newly enforceable) anti-abortion policies or who is responsible for policing and prosecuting those policies.
Law Dork, with Chris Geidner, is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.