On Friday, the Supreme Court overruled Roe v. Wade in a decision by Justice Samuel Alito. Last month, when a draft of that decision had leaked, Erin Bernstein and Emma Sokoloff-Rubin wrote about what blue cities could do to protect abortion access in red states.
On Wednesday, the U.S. Senate voted 51–49 against moving forward a bill that would codify and expand upon the abortion protections guaranteed by Roe v. Wade, which the Supreme Court is poised to strike down in the next two months. While federal action is necessary to guarantee full reproductive health care protections, the political climate makes that unlikely anytime soon. There is one avenue to protect these rights, though, that has been underdiscussed: action by local officials in states and cities to protect abortion access, even in red states that seek to ban abortion.
The conversation about abortion rights has traditionally focused on the federal government, and there has been far less talk about what cities can do to keep abortion safe and accessible. But access to abortions and reproductive justice often depends on very specific, local factors, which will only become more significant if the court strikes down Roe: How many abortion providers an independent clinic or county hospital has on staff. Whether there’s enough security for providers to safely practice. Whether the local police department will investigate—or the district attorney will use its discretion to prosecute—abortions, miscarriages, or stillbirths.
While the potential post-Roe landscape is frightening, there are important actions officials who support reproductive health rights can take even in states that seek to ban abortion. For red-state residents, a blue city might provide protection from prosecution, if not a source of abortion care itself.
As lawyers who have represented progressive cities and taught local government law, we’ve repeatedly seen the impact of cities that step up to protect rights under threat at the state or federal level. Here are four sets of issues we should all be asking our local officials to prioritize in the weeks and months ahead.
Providers. Beyond brand-name Planned Parenthood centers and independent clinics, many municipal hospitals are essential community abortion providers. One thing that local governments in pro-choice states need to consider is whether they are or can become abortion providers. Government-run clinics must ensure that they have enough staff to accommodate people who are likely to cross state lines seeking care, and blue-state officials can support that effort with funding. Counties that do not provide abortion care directly can instead help fund providers or provide hospital space to them. Even in states where abortion is likely to be banned, progressive localities should consider whether their hospitals’ legal departments provide training on how to document miscarriage management, ectopic pregnancy, and other conditions likely to be scrutinized post-Roe in a way that protects patients to the greatest extent possible. Those localities should offer support and instruction for professionals on how to ensure that their patients receive the best possible care and are not abandoned to the courts if a state decides to question that care. Either way, local governments should consider ways to reallocate funds toward reproductive health care before Roe falls.
Data. Immigration sanctuary cities responded to shifts in federal law during the Trump administration with a data management strategy. Do you need someone’s immigration status? If not, don’t write it down or put it in a database. Local hospitals, whether in red or blue states, should carefully consider what kind of records they must keep about people accessing care related to abortion or miscarriage, along with other kinds of soon-to-be-banned care. County hospitals can also commit to objecting to subpoenas requesting medical records, and instead force courts to compel their cooperation. They can choose not to question a patient’s narrative; they can decline to allow police to question a hospitalized patient.
Nonprosecution. Progressive district attorneys have won election in cities across the country in recent years, including in red states. Some in red states have already said they will refuse to prosecute criminal cases involving abortion. We need to demand that progressive prosecutors nationwide use their broad discretion to decline to prosecute doctors and patients for accessing abortion, for “suspicious” miscarriages, and for using types of birth control outlawed by state abortion laws that mistake pregnancy prevention for pregnancy termination. Even in states like Texas and Florida, it is often local elected prosecutors who will be making those determinations, at least for now.
On the flip side, advocates should be partnering with civil liberties organizations to scrutinize local police departments’ use of big data technologies, which could be used to identify and locate those who have accessed abortion care. Some cities, such as Oakland, California, have privacy task forces that must approve any new technology used for surveillance purposes. Such government bodies could, for example, refuse to approve any technology that makes use of data from period- or fertility-tracking apps. Cities might also consider directing their own police departments not to run searches of residents’ internet searches related to health care.
With the right resources, public libraries could also provide a space for residents to search for information related to self-managed abortion without leaving a search history on their personal devices. Blue cities in red states could provide funds to advertise the availability of library computers, purchase more devices if needed, and even set up the physical space in a way that affords computer users some degree of privacy.
Advice. Another important role cities play is giving advice to their agencies and hospitals and to the public at large. Cities can advise OB-GYNs concerned about their own vulnerabilities, particularly given laws that seek to criminalize routine care even when performed out of state and to deputize citizens to sue health care providers. These localities should develop a clear channel for providers to ask questions about how best to protect themselves while still providing care. Many local governments already have systems in place for disseminating information. During the pandemic, cities have used websites, automated texts, central phone lines, and more to make rapidly changing information and guidance available about COVID-19. Drawing on these strategies, local librarians and public health departments can play an important role in providing information about self-managed abortions. Cities need to think about how their employees might provide guidance, such as by handing out informational pamphlets or via websites and transit ads, and explore strategies for protecting employees and residents alike from liability.
Providing even the most basic care or guidance to people from out of state is complicated, of course, in light of S.B. 8–style laws through which states like Texas seek to hold liable anyone who aids or abets an abortion, regardless of what state they’re located in. And there are some kinds of advice and care that city officials simply won’t be able to offer without incurring significant risk. But cities should put resources into figuring out what they can do. They can try to pass laws barring local officials from cooperating with out-of-state investigations or prosecutions related to reproductive health care, or support such laws on a statewide level. They can collaborate with other local governments to figure out what protections, legal or otherwise, the city is positioned to create or provide. They can keep track of new laws as they are passed and provide reliable guidance—or form partnerships with outside counsel who can—so that local employees and providers feel empowered to provide what care they can without withdrawing completely from the field. Local governments are more capable of assuming risk and defending their constituents than any individual provider or clinic might be, as they are better resourced and may have significant immunity from criminal and some civil suits.
This list is just a start. The landscape is rapidly changing, and not all of our ideas will work. But if the recent wave of conservatives mobilizing on “critical race theory” at local school boards has taught advocates anything, it’s that a few loud voices at the local level can change the tide on policies that affect tens of thousands of people. Advocates in left-leaning cities would be wise to draw inspiration from this method, if not the message, and prepare to loudly protect and expand reproductive rights. There’s tremendous opportunity at the local level and even more at stake.
