In a courtroom in Austin, Texas, last month, five women put the state’s harsh abortion laws on trial.
Officially, their lawsuit aims to clarify the exceptions in the state’s complex scheme of abortion bans and restrictions. Since 2011, Texas has had an abortion law that defines a “medical emergency” to include any “life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function.” Somewhat different definitions apply in other Texas laws, including SB8, the law allowing anyone to sue a doctor or someone aiding them for at least $10,000 per abortion. The Center for Reproductive Rights, which is representing the women who brought the lawsuit, argues that because Texas’s exceptions are unclear or even contradictory, physicians are unsure when they can provide care and thus are likely to turn away even patients who qualify for a legal abortion because they have a life-threatening condition.
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But as the women’s testimony made clear, the trial is about more than the legalistic nature of the exceptions to the ban. The five women told stories about having near-death experiences; being sent away when her water broke, going into septic shock, and ending up in intensive care, which is what happened to Amanda Zurawski; or sobbing and nearly vomiting on the stand recalling the death of a baby who lived for just four hours, as happened to Samantha Casiano. The power of their testimony was undeniable: Casiano’s story alone brought people in the courtroom to tears, even an attorney for the State of Texas.
The case is a potent reminder of the power of women’s stories. Before Roe v. Wade was decided in 1973, feminists harnessed this tactic, hosting abortion speakouts where participants discussed their own experiences of pregnancy, miscarriage, sex, sexual assault, and abortion.
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Something similar happened in Ireland after 1983, when voters put in place the Eighth Amendment, a constitutional amendment prohibiting abortion in almost all instances. Irish activists experimented with a wide variety of strategies to test the sweeping interpretation of fetal rights associated with the Eighth Amendment: They went to the nation’s supreme court to establish a right to abortion in cases of extreme threats to health and life, and they litigated before the European Court of Human Rights, advocating for a right to information about abortion access and arguing that the state had a duty to make safe abortion available in the situations in which it was legal under Irish law. But these legal efforts made only a modest difference on the ground, and when pressed by international bodies, Irish political leaders argued that voters had never repealed the Eighth Amendment and still agreed with its basic message.
Storytelling, at the grassroots level and otherwise, was ultimately what made the biggest difference. Viral social media campaigns like “In Her Shoes” and “Everyday Stories” collected the experiences of women who lived in Ireland under the Eighth Amendment. And in 2018, Irish voters overwhelmingly decided to repeal the amendment.
Abortion-rights advocates in the United States seem to have learned the lessons of the campaign to repeal the Eighth. Lawyers and grassroots activists still make arguments about the connection between abortion and social justice, or sex equality, or privacy. But the campaign to expand access and chip away at Dobbs v. Jackson Women’s Health, the 2022 decision that overturned Roe, will have as much to do with making clear what happens to real patients when abortion is a crime. There is evidence these stories will resonate in the United States — several polls have shown that voters tend to be more strongly opposed to certain bans and restrictions in states where they are enforced. Living with the costs of abortion bans means something different than abstract conversations about life and choice.
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Antiabortion lawyers are well aware of the power of women’s stories. That’s why lawyers for states like Texas are trying to keep patients out of court altogether. In the current lawsuit brought by the Center for Reproductive Rights, Texas tried to stop the plaintiffs from telling their stories by arguing that they didn’t have standing to sue: Their injuries occurred in the past, the state argued, and any harm that could come to them in the future was speculative. By that logic, it would be almost impossible for women to challenge an abortion ban unless their lives were on the line at the moment they arrived in court.
Texas also tried to deflect the lawsuit by blaming everything on doctors. It wasn’t Texas Governor Greg Abbott or Attorney General Ken Paxton who had refused to perform an abortion, lawyers for the state insisted. It was individual physicians who refused to do their job and perform procedures authorized by state exceptions.
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Of course, in literal terms, the attorney for the state is correct — physicians have to interpret the state’s exceptions. But the prospect of harsh penalties for violating Texas’s abortion bans — including life in prison — requires physicians to gamble their liberty and their careers on a particular interpretation of an exception, one that does not address sudden medical contingencies. The more that heartbreaking stories about such contingencies are told in court and in the news, the further behind the antiabortion movement will fall in the battle for hearts and minds.
Over the years, the antiabortion movement dealt Roe a death by a thousand cuts by pushing restrictions and carving out exceptions to abortion rights, all while telling a story about fetal protection that resonated on the right. But what happened to Roe could happen to Dobbs, and the Texas case is just the beginning.
Mary Ziegler is a professor of law at the University of California, Davis. Her latest book is “Roe: The History of a National Obsession.”