She Won an Abortion Rights Case in the Supreme Court. Now She’s Watching the Same Damn Fight Again.

Amy Hagstrom Miller talks David Byrne, playing the long game, and who is most important here.

J. Scott Applewhite/AP

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Amy Hagstrom Miller is one of the fiercest advocates for reproductive rights in the country. She is the president and CEO of Whole Woman’s Health, a network of eight abortion clinics that operate in five states, and she’s best known for her role as a plaintiff in a Supreme Court case in 2016, Whole Woman’s Health v. Hellerstedt, in which she fought back against a set of arcane abortion restrictions on the premise that they created an undue burden for women seeking access to the procedure. She won, and the court recognized those restrictions—which included requiring clinics to meet surgical suite standards and acquire hospital admitting privileges for providers—as harmful to women, rather than protective of them. You’ve probably seen photos of her standing on the steps of the Supreme Court on the day of the ruling in a white power suit, close-cropped platinum blonde hair trimmed into precise layers, bold lipstick, broad smile, I-prepared-for-this glasses.

Mother Jones called her up a few days before the Supreme Court was going to hear yet another case regarding a law requiring abortion providers to have admitting privileges at a nearby hospital—this time involving providers in Louisiana. The case, June Medical Services v. Russo, has felt all too familiar for Hagstrom Miller, and she told us about what it’s like to watch a case she’s already won be relitigated four short years later—this time with a conservative majority court. 

I guess the more things change, the more they stay the same, huh?

Right, it’s like that David Byrne lyric, Same as it ever was. It always goes through my head. 

What has been on your mind, watching all of this play out over again?

It’s interesting. You have that first reaction of, “Oh my goodness, we just went through all of this, now we go through it again.” But then I sort of stepped back and realized, of course they’re coming for us. We did this great thing, we advanced the ball. I should not ever use sports analogies, but we really advanced the field, I am told, more than what has happened in a generation.

And so, if you think of all the different strategies that the opposition has had over the years to try to chip away at Roe, or come after Roe, of course they’re coming after Whole Woman’s Health. We defined the concept of undue burden, and we put some standards in place that are much more rigorous, that require elected officials to support any restrictions on abortion with scientific facts and medical evidence. That’s huge. So of course, they’re trying to ignore it, or they’re trying to pretend the facts are different in Louisiana than they were in Texas. They’re going to try to narrow the decision. What really remains to be seen is what parts of it they may be able to narrow or change. But I really see how quickly this happened after we won as a sign that we did some really good work, and we advanced [abortion rights] forward.

What is the difference for you in not being directly involved? 

It’s harder for me this time because I’m not the plaintiff, so I can’t necessarily influence public opinion in the same way. But on the other hand, because I’m not a plaintiff, I feel like I can talk candidly in a new way. One of my first reactions was that the Fifth Circuit is being insubordinate to the Supreme Court, pretty plain and simple, right? They’re ignoring the Supreme Court’s ruling and trying to pretend it doesn’t apply in the Fifth Circuit in Louisiana, which is just one state over from Texas. The Supreme Court needs to step in here, and it’ll be interesting to see what the Roberts Court tolerates and how much they honor the precedent and the rule of law. What we can’t forget, as we start talking about legal strategies and interesting cases, is that real people’s lives are affected here. These are real people, real clinics, real people who need safe abortion services in Louisiana. It’s not just some sort of legal Monopoly game. The impact of restrictions like this is far-reaching, and it has a huge effect in communities for years if a clinic gets shuttered.

You are all still seeing the effects of HB2 in Texas, right?

Absolutely. We had 44 clinics in 2013. When HB2 went into effect, we had to close all but six of them initially, and then we were able to get an injunction that allowed us, I think, to have something like 18 for a long period of time. But since we won the case, only five have reopened. That shuttering of clinics has this lasting impact on communities all across the state. You could have a legal win on paper, and even a really strong one—which we did—but that doesn’t necessarily mean communities can recover and clinics can reopen. The cruelty of a law like this is that by design, it really does have a lasting impact, and it doesn’t improve health and safety. In fact, it rolls it backward in a very devastating way.

The Supreme Court will potentially rule on whether abortion providers will be allowed to retain third-party standing to represent their patients in abortion litigation. Can you talk about what that could mean for Whole Woman’s Health and other providers?

One of the most important things to talk about is what it means for pregnant people. I have brought lawsuits on behalf of the people we serve many times now, and I know what it would mean if we weren’t allowed to do that, if a pregnant person had to bring a lawsuit on behalf of themselves and undertake what we have gone through. It’s not only ridiculous, it’s actually cruel. What we as plaintiffs have gone through is remarkable. Not only the time commitment and the devastation of going through discovery and depositions and a trial and the sort of vitriol that you deal with from the opposition’s attorneys. And the raking through thousands of emails and all of your communication…it’s cruel to think of one individual having to endure that. It was cruel for us to endure it as an organization—but to think that somebody has to bring a lawsuit in order to assert their rights and sacrifice their confidentiality, sacrifice their families’ well being. The other piece of it is that your average patient doesn’t know the legal system, doesn’t have access to attorneys and nonprofit reproductive rights law firms, etc. To say that we would think it’s okay to put them in that position is ridiculous. Not to mention that they wouldn’t get relief in time, right? You can bring a lawsuit while you’re pregnant, but then, you know, even for Norma McCorvey, the plaintiff in Roe, it took years before Roe was decided, and she had a baby. 

I’ve heard arguments like, “oh, she could bring it confidentially.” Or, “she could be anonymous.” I’ve been through depositions, I’ve been in the witness stand myself. The discovery, the process, and the time it takes to even go through the preparation for a deposition or being a witness, is really, really difficult. Saying, “Well, that’s the only path to justice that a patient could have,” is really scary. It’s also just extreme.

When you’re talking about sort of flashing back to your Supreme Court case in 2016, is there anything specific that you’re reliving?

Flashing back is a good way of putting it. It’s a little bit more triggering than I expected. It’s not only the trauma of having to close clinics and having to turn patients away because of politics and abstract ideology and not anything to do with health and safety. It’s being in the position of having to tell patients in the community [about anti-abortion legislation] and being a pawn in the state’s assertion of power. It’s how it’s changed our relationships with our patients. Our patients could see us as the enforcer. We’re put in this position of telling them about the restriction, dealing with their reaction to it, and then enforcing the restrictions when they go against our beliefs about what she is capable of and what she deserves. For me, that’s one of the more abstract but more long-lasting effects as I look back over my career. I came into this work because of my deep commitment to human rights and justice. And I see myself sitting beside that pregnant person as their guide and their support, not getting in their way or trying to cause them to have delays or have to jump over hurdles. And so, just the sort of crafty and manipulative way, the opposition has put the very people there to help the woman be the enforcer of the rules against her is quite a thing.

 So how do you keep going?

There’s ups and downs, for sure. My spirit is the thing that can really get dinged. It’s really about thinking about the long game. My work is to hopefully eradicate the stigma that surrounds abortion in this country. That we at least engage with it and shine a light on it and show people how those stigmas and biases are manufactured as tools of the opposition. That, in many ways, they don’t have anything to do with abortion at all, it’s about controlling women and about the real fear of what true equality and autonomy would look like. When I keep my eye on that long game, I take the setbacks less personally—because of course I can’t eradicate the stigma around abortion in my lifetime. We’re up against something really big and really fundamental, and abortion has become this little football. But it’s really representing much bigger work toward equality and autonomy. We can’t arrive at full autonomy unless we have the ability to control our fertility. I can’t dream a future for myself that’s equal to a man’s if I can’t know that the option of abortion or contraception is available to me. It doesn’t even really matter if I exercise that option ever in my life. It matters that I know I could. To dream of that future that really is predicated on equality. I understand that that’s fundamentally what’s at stake here. Then I’m able to see the struggle for abortion rights in human justice and reproductive justice as part of a much larger through-line that has to do with racial inequality and economic injustice. 

It helps me to not get in the weeds, not get so personal about it. But it also is personal, right? In my organization and our company, these are my resources. These are my staff. It’s very important to me to provide a stable, healthy, fulfilling work environment for the people who work for me who do this really important work. And the state is just constantly making it difficult. I wish I could make it more stable not only for the people who work in the clinic, but also for the patients. 

Are you preparing for a loss in the June Medical case?

Yes, we are. That’s part of being an abortion provider: We’re always working three or four things at the same time, because maybe one will work or maybe two. That’s true about hiring people or training people or trying to find a lease or trying to get a building. Those kinds of things are just a reality that I’ve come to accept as part of the work that I do. I’ve got to think about contingency planning for my clinics in the states that will be adversely affected. I also have to think about the outcome for the clinics in the states that are haven states that are going to be stable no matter what, and what their role will be to receive people from other places. How are we going to be ready for that? So I’m grateful that Whole Woman’s Health operates clinics in five states and that they’re not all Texas or Indiana. 

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THE BIG PICTURE

You expect the big picture, and it's our job at Mother Jones to give it to you. And right now, so many of the troubles we face are the making not of a virus, but of the quest for profit, political or economic (and not just from the man in the White House who could have offered leadership and comfort but instead gave us bleach).

In "News Is Just Like Waste Management," we unpack what the coronavirus crisis has meant for journalism, including Mother Jones’, and how we can rise to the challenge. If you're able to, this is a critical moment to support our nonprofit journalism with a donation: We've scoured our budget and made the cuts we can without impairing our mission, and we hope to raise $400,000 from our community of online readers to help keep our big reporting projects going because this extraordinary pandemic-plus-election year is no time to pull back.

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