Authoritarianism, Criminalization, and Reproductive Injustice

Nourbese Flint, President of All* Above All and All* Above All Action Fund: There was a time when abortion was relatively available in this country. Doctors’ associations were the first to oppose abortion—not out of concern for “human life,” but to take midwives out of the picture and “professionalize” access to reproductive care. Thinking about our opponents as only those who are anti-abortion is a limited view of the real game here. When we look at fascism in other countries, the first targets have been abortion access and LGBT folks. It was a strategy to commodify people’s bodies, to say, your body does not belong to you, it is now the government’s body. What you produce is not yours, it is something that you need to do on your country’s behalf. The weaponization of abortion is a tactic of fascism and in most authoritarian governments.

To be serious about a long-term win, we must be rigorous and strategic about not just these segments—like abortion bans—that are causing a lot of harm, but to see them as part of a larger strategy. Until we do that, we’re playing in a defensive posture, and we aren’t going to achieve what we need.

Lourdes Rivera, President of Pregnancy Justice: This question has me thinking about a phrase that I’ve heard often outside the U.S. and that I’m hearing more often within it: “gender ideology,” meaning feminism and bodily autonomy, LGBT rights, women’s rights. Authoritarians frame this as a bad thing that they need to protect our societies from because these things are dangerous to the state and the order of things. The notion of gender ideology was used to derail Colombia’s peace process, initially, and it took a lot of work to put it back on track.

But this is not new, and criminalization has been a key part of this pattern. Midwifery and abortion were criminalized, partly out of a concern that White women were not having enough babies, and that post-abolition, formerly enslaved Black people would have children who were no longer property. The backlash against abortion is intertwined with the backlash against efforts to end segregation. It was not cool to talk about segregation or admit to wanting it, so making it about opposing abortion was a way to bring together White evangelicals to push forward a very conservative agenda.

To return to your question: Abortion bans are criminal laws. We should think about them as criminal laws that threaten people with incarceration. But even during Roe, the infrastructure for surveilling and criminalizing pregnancy, pregnancy outcomes, and pregnant people, especially people from marginalized communities, was being built by granting embryos and fetuses the same rights as persons. So while we paid attention to abortion bans, the Right has been building this notion of fetal personhood into state criminal and civil law.[1] People were already being criminalized, and they are being criminalized after Dobbs in a more unleashed way. But they’re not using the abortion ban laws yet; they’re using criminal child abuse and neglect, abuse of corpse, or other criminal laws to make an embryo or fetus a “victim” harmed by the pregnant person.

That infrastructure was built initially through the War on Drugs under Nixon, who needed a tool to tamp down on the anti-war movement and the Civil Rights Movement by criminalizing and surveilling people who use drugs and targeting communities. The myth of the crack baby followed, resulting in Black and Brown women being surveilled and incarcerated at exponential rates. Ironically, the drug crisis looks different right now—it’s in rural areas, in states like Alabama, where poor White women are being targeted, even as Black and Brown women are too. Because of this existing criminalization infrastructure, there’s no need for prosecutors to overtly use abortion bans to accomplish the same goals.

Jamila Perritt: The enshrinement and codification of these personhood laws was only possible because doctors and scientists backed it up. When we’re thinking about our approaches and strategies, there cannot only be a legal strategy. There are accomplices in all of these systems. Medical providers, the police, and the carceral system are so deeply in bed with one another that the strategy must include providers.

Lisa Wayne, Executive Director, National Association of Criminal Defense Lawyers: Given that complicity of scientists and doctors, being united makes a difference. I don’t have a background in reproductive justice, but when you reached out with a vision of including criminal lawyers in this space to hear what is really happening in the courtroom, I remember feeling reticent and unsure about what we have to add. And what I have learned, especially here, is that if you know what we are doing in the courtroom and we listen to your on-the-ground expertise, it unites our approach, to be able to overcome criminal laws and their consequences.

Anybody who thinks the legal system isn’t based on White supremacy doesn’t know what the system is about—civil and criminal. I’m sitting here and listening to things like “gender ideology,” “feminism,” “bodily autonomy.” Most criminal lawyers in this country are going to say, What are you talking about? But now we can bring back what you’re telling us and consider what needs to be part of representation to be more effective. You also need to be a part of what we’re doing to make sure that the laws and the bills that we’re lobbying to pass make sense. We need to ask: What’s the history here? How’s this really impacted you? What does this surveillance really mean to you? We cannot be reactive. We must be proactive.

Naomi Washington-Leapheart: I appreciate this reframe of the problem, grounded in history and its legacies. You all have referred to ways we need to expand the conversation, to think more strategically and expansively about who we need in the fight, who we need to move. We know more about the policies and ambitions of MAGA Republicans and Christian nationalists to end access to reproductive health in this country. This is clear in the successful overturn of Roe and the promotion of Project 2025.

Let’s talk about what you’re seeing on the ground. You told us about how our analysis, the way we tell the story, and who we need to involve all needs to shift. Given this moment of rising state-level authoritarianism and its consolidation at the federal level, how are the battlefields around reproductive justice changing on the ground?

Nourbese Flint: The conditions have changed dramatically. This reminds me of something Max Elbaum said recently: “Elections determine the battlefield in which we are playing. They are not the battle.” We need to understand that there are many battles in the war. Elections are important because they give us a space to see if we can advance or not. When I think about what’s on the ground and what’s happening with the professional Left: There needs to be a lot more communication, strategy, and organizing.

We need to understand that folks are sad. It’s debilitating when you don’t think that something will be better for you. It’s incredibly hard to organize for a better future. The opposition wants us to be sad and hopeless. It’s our job to figure out how to inspire hope, which isn’t the same as optimism. This is not I hope everything will get better. It is the ability for folks to believe there’s something better and to work towards it.

Lourdes Rivera: One of the lessons we must carry forward is that chaos is a strategy to exhaust us. It’s important that we prioritize and trust each other. We’re going to be working in our lanes and communicating across them, so that we can be supportive and understand how it all fits together, but we can’t all do everything all the time, because that is exhausting. We must also build in rest and hope and joy in between the hard work we need to do.

All these resources get put into elections and then they drop off. We have to figure out how to continue the conversations and build community. People need community, and those who do community engagement work should be resourced to do it.

People are not always connecting these dots. I’m thinking about Missouri—the abortion ballot initiative’s passage was a success, but then the rest of the vote outcome puts in place an administration that risks making that win worthless, along with everything else. So if in some ways, our movement has been successful, including in red states, we’re also leaving a lot on the table. I’m reminded of when our side defeated the fetal personhood ballot initiative in Mississippi, but the anti-voting rights ballot initiative moved forward, and a few years later because we lost on voting, we lost on abortion too. So, we need to connect these things.

And finally, I keep reminding myself and my team that there are people around the world who have come out the other side. We need to learn from that too.

Jamila Perritt: We need to be deeply grounded in what is happening with folks who have real material needs and don’t have the space, energy, capacity, or interest right now to talk about these things. Poverty makes you preoccupied with survival, so thinking about how those two things come together is a constant struggle and question. How do we get and keep folks engaged when we are not doing what needs to be done for people’s survival? How do we give them space to think about something other than what is happening in this moment?

There is a distinct lack of understanding about what organizing is. Some believe that organizing begins and ends with disruption. That has a place, but there are also concrete skills that make organizing effective. What is the vision and the strategy—that is, how do you remember how to dream of something better than this? But also: How do you think about the steps to get there? The other thing is that people come, and they bring so much of what radicalized them in the work, which is often related to trauma, but the movement is not therapy. We need infrastructure and programs—and people need care. They need to heal to be able to move the work forward and effect change.

Lourdes Rivera: Who is actually addressing people’s material needs? If it’s not us, then we’re in trouble. The Black Panthers’ strategy included providing school lunches and free breakfast for kids.[2] The Young Lords forced the city of New York to pick up people’s garbage because that’s what people were upset about and took over Lincoln Hospital because it was roach infested. It is because of the Young Lords that we have a Patient Bill of Rights.[3] Do people know that? These examples show that we must address people’s material needs in our movements so that people are turning to us and not the Right.

Jamila Perritt: We saw during COVID a big shift in addressing material needs. Prior to that, the federal government claimed that they could not give cash to people: No, no, we can’t do that; it’s going to have catastrophic outcomes. Well, look who did it. Before COVID, you had to have a prescription, you had to have preauthorization, you could only see your doctor for medication. Then COVID happens and you can walk to your local Safeway to get a vaccine if you want.

This idea of what’s possible came out of something that was horrific and poorly managed. There are some lessons that I think can and should be used to force change on a larger level. Now you can no longer tell me you can’t do that, because I saw you do it. What do we think about when we think about next steps and strategies? Both in looking at what happened in hindsight and saying Yes, that worked; no, that didn’t work, or No, this is not the right time for that.

Naomi Washington-Leapheart: As advocates and practitioners, where do you see more opportunities to intervene to secure reproductive justice for everybody, both in the immediate, proximate sense, as you all have been talking about, and in the longer term?

Lourdes Rivera: I’m reminded here of Erica Chenoweth’s scholarship. She’s studied civil disobedience movements from 1900 to contemporary times and has empirically documented some common elements of successful ones.[4] They tend to be led by people who are most impacted; are nonviolent and capable of soliciting broad and diverse support; have the ability to cause defections among elites, including military regimes’ security forces; and employ broad tactics, from marches in the street to work stoppages. We too have to be nimble in the various tactics we use, including addressing people’s material needs.

The debate about tactics is tired—legal versus non-legal, or community organizing versus this or that. The answer is yes! We have to make sure it’s all resourced, even if we don’t have the resources of the billionaires funding the Right.[5] But the answer is YES.

Lisa Wayne: We have to recognize our opponents’ strength because they clearly have gotten things right that we have not. We can recognize it and use it for good. Some of the techniques that they have used over the last 40 years that we have loathed have really made headway. We need to change that, integrate it, embrace it, and turn it around for good. And I’ll tell you where we see it: surveillance. The Right hates to be surveilled, trust me. When you go and talk to people on the Right about surveillance and facial recognition and being tracked on the phone, they’re freaked out about it. So, there are common threads that we can recognize in our opponent and use to our benefit. It’s up to us to find that common thread and get them all back to vote again. I really believe that we shouldn’t give up at this point.

Jamila Perritt: This morning’s conversation about opposition research got me thinking about the ways that understanding your opponent has always been a primary tool of survival for folks. It made me shift [from not wanting to talk about the opposition] and think more deeply and expansively about what it means to understand your enemy, the need to do opposition research in some capacity, the value that it has brought historically—and how we can think about doing the same thing moving forward.

Nourbese Flint: In California, I had the honor of building a cross-movement strategy with organizers from labor and the environmental space working on the maternal health bill. If you look at the birthing outcomes of people who live in urban heat areas—places where there aren’t many trees, so the sun is bouncing off the concrete and making it hotter—they have a lot more pre-term babies. We were able to put some of that information into our preamble for a big omnibus policy bill and got some environmental folks to come on board. Other folks came in and found a way to organize with us. We have to start thinking: How do we bring these pieces together to build a cross-movement strategy?

Lourdes Rivera: What can we do proactively at the state and local levels that is pro-family, pro-child, pro-community—like planting trees because it creates better maternal health outcomes? Where can we take the time to build those agendas at the state and local levels?

Then we can build up to a national agenda that we can push forward with a strong base.