1. The Day Roe Fell
SYNOPSIS
Illustration by Nicole Xu
The Post-Roe America series opens in Orlando, at a reproductive health conference where many abortion providers were gathered on the day of the Dobbs leak. We follow a few of them home, as they scramble in the aftermath to figure out what the ruling means for their practices, their patients, and themselves.
LISTEN
Featuring
Diane Horvath, MD MPH
Jiana Menendez, MD MPH
Nikki Zite, MD MPH
CREDITS
Host & Co-creator: Ali Block, MD
Co-creator: Emily Silverman, MD
Lead Producer & Editor: Molly-Rose Williams
Producer, Editor & Audio Engineer: Sam Osborn
Producer & Editor: Jessica Yung
Audio Engineer: Jon Oliver
Student Producers: Anjali Walia, Dahlia Kaki, Fiona Miller, Mulki Mehari, and Treya Tompkins
Assistant Producer: Carly Besser
Chief Operating Officer: Rebecca Groves
Series Illustrator: Nicole Xu
The Nocturnists Theme Music: Yosef Munro
Additional Music: Blue Dot Sessions
Resources
Sponsors
The Nocturnists: Post-Roe America series was made possible in part by the Josiah Macy Jr. Foundation and the Danziger Family Fund at The Chicago Community Foundation.
Support for The Nocturnists’ medical student producer program comes from the California Academy of Family Physicians Foundation.
The Nocturnists is supported by the California Medical Association, and people like you who have donated through our website and Patreon page.
TRANSCRIPT
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The Nocturnists: Post-Roe America
Episode 1. The Day Roe Fell
Transcript
Note: The Nocturnists is created primarily as a listening experience. The audio contains emotion, emphasis, and soundscapes that are not easily transcribed. We encourage you to listen to the episode if at all possible. Our transcripts are produced using both speech recognition software and human copy editors, and may not be 100% accurate. Thank you for consulting the audio before quoting in print.
Emily Silverman
You're listening to The Nocturnists. I'm Emily Silverman. When the Dobbs leak happened back in May 2022, we knew we had to do something at The Nocturnists. Rarely has a single political decision had such wide-sweeping immediate impact on the world of health care, and rarely have those impacts been so dramatically and dangerously misunderstood by those outside of the hospitals and clinics where they're taking place. We wanted to track the follow-up through the eyes and voices of the health care workers at the heart of it all.
So, soon after the decision, we started talking to abortion providers and recording their stories. Dr. Ali Block was the natural person for this job. Ali's the executive producer of The Nocturnists, and has been embedded in the world of reproductive care as a Family Medicine physician and abortion provider for many, many years. So, over the next seven episodes, we'll venture with Ali across America to hear stories from healthcare workers in Texas, Tennessee, Kansas, California and beyond. What has Dobbs meant for their lives and practices? And what has the impact of these changes meant for the world of American health care?
This is The Nocturnists: Post-Roe America. Allow me to introduce you to your host, Dr. Ali Block.
Ali Block
In 2014, the year I graduated my Family Medicine residency and started officially performing abortions on my own, 87% of U.S. counties had no known abortion provider. As a young attending entering the field, I saw the potential of a better future for the world of reproductive care. I had high hopes. What if everyone in the country who needed an abortion was more than just allowed to get one, but able to access one as well? The Dobbs decision changed everything. My hopes for the field I love so much haven't gone away, but the script beneath them has changed. Because today, in many places across the country, people who, a little over a year ago, may have been providing abortion care daily... people with my same job... face the risk of criminal charges if they do the work they're trained for.
In our conversations with healthcare workers over the past year and a half, one thing has become clear. There's no single unified story of what this decision has meant. Instead, it's more of a tapestry of experiences. Because Dobbs didn't only make it harder to get an abortion in red states. Were also experiencing ripple effects in the way reproductive care is taught and practiced, in how our hospitals and clinics keep us safe, and in how we calculate risk for pregnant patients. If we once had a clear sense of how this puzzle all fit together, the pieces were just shaken up and dumped on the floor. So where to begin, when everybody's experiences are so varied?
For this episode, we decided to start the day of the Dobbs leak in May 2022, when the world first found out that the United States Supreme Court was set to overturn Roe v. Wade. That day just so happened to also be the day of NAF, the biggest abortion conference of the year, put on annually by the National Abortion Federation.
Jiana Menendez
So NAF was in Orlando, it was one of those resort-y hotels where it was like... It was a bunch of pools and had a conference center in it. But it was, you know... It was like 80 degrees and beautiful, as it is in Florida. Even though, like in New York, it was still barely above freezing. In, like, the first weekend of May.
Ali Block
That's Jiana Menendez, a primary care abortion provider based in New York City.
Jiana Menendez
It was a normal conference. In our realm of medicine, unfortunately, politics is always like part of the CME conference. So there were, you know, talks about the political climate and Trump stuff. But that's like normal enough for any of our spaces.
Diane Horvath
It's actually a great meeting.
Ali Block
That's Diane Horvath, an abortion provider based in Maryland.
Diane Horvath
I think this care can feel really siloed because a lot of us are not working in hospitals; we're in freestanding clinics. And so the community that we have is the community that we make. Nobody is, like, holding get-togethers for us, you know. And so, this meeting is one of the ways that we build community.
Ali Block
There are only a few hundred abortion providers around the country, so any opportunity to gather can feel special, and this year's conference felt particularly special. It was the first time most people had seen each other since the pandemic began. And the years leading up to the May 2022 conference had been incredibly bleak. There was Ruth Bader Ginsburg's death in 2020, followed by the appointment of Amy Coney Barrett to the Supreme Court. Then COVID spurred a lot of conservative states to deem abortion non-essential care, and put "pauses" on in-clinic access. And S.B. 8, a Texas bill that essentially made abortion illegal in the entire state was passed nine months before the conference. Things felt like they were at a boiling point. On top of that, Roe was on the docket to be heard by the Supreme Court. Diane came out of isolation to this conference, and, like a lot of people we talked to, came with a strong sense of purpose. If there was ever a time for action, this was it. One of the ways she wanted to contribute to the fight was by presenting an idea for a new clinic.
Diane Horvath
I've been talking about opening my own clinic for, like, six or seven years. And my business partner, Morgan, and I... She has a couple of kids that are a little bit younger than my child, and we had been meeting up, like, quarterly to exchange clothes. So, my kid grows out of stuff 'cause kids grow really fast, and so I would pass along clothes to her kids. And one of the things we've been talking about, for years, is the idea of like, what we would want in our own clinic. And, like, if we were going to do this... Like, what could this look like?
We had a very successful meeting. People were very excited to hear what we had been up to, happy that another clinic was going to be opening. We managed to, like, scare up enough money to get some swag to give out, which was great. And just, like, a really good buzz. Like, people were talking about us. People were talking about the work.
Ali Block
Diane said she felt like she was on kind of a high. And the clinic actually felt possible. Sure, there was some money to be raised and plenty of work to be done, but the support was there. And then, it was the last day of the conference.
Diane Horvath
So, the conference had officially ended. We were staying there one more night. We're like, "We're gonna relax." The pressure was done. Right? So all that's over. It's a beautiful night. It's in Florida; it's gorgeous out. Like, you know, probably going to have dinner and then go sit in the pool, you know. Like, there's all sorts of, like, lovely evening things you can do. And, so the mood was, like, really good. It was really positive. People were happy to have been in this, like, shared space together. And it... just like... It was...It was really stark.
Ali Block
Diane was getting dinner with her team: her partner Morgan, her COO, her nurse who was from Texas.
Diane Horvath
So, there was the four of us at a dinner table in the hotel restaurant, and we got a ping on our phones, a New York Times headline saying that the Dobbs decision had been leaked. You could tell that two thirds of the people in that restaurant in the hotel were people who had been at our conference because, like, a hush fell on the room. People were texting and, like, if you didn't see the headline, then someone sent it to you. And it took about five minutes for every single table in that place to, just like, completely shut down. Everybody was, just like, staring at their phones. Like, you know, looking at each other. People were like holding hands. And so we pulled up the article, and sat and kind of read it to ourselves at the table. The nurse that we were with from Texas started crying and said like, "I just need to go to my room. This is going to kill people. Like, I'm just thinking about all the people that are going to... Like, not be able to get this care, and it's going to ruin their lives." And she had to leave. And my business partner Morgan just was like blank-faced, and said, "I need to go upstairs."
Jiana Menendez
I would say, like, in the abortion world, we have known this was coming, and we have been preparing for this to happen. And Roe was really the floor, not the ceiling. Like, abortion care has always been so inaccessible to so many people in the US. TRAP laws (targeted restrictions of abortion providers), you know. States only had one abortion clinic: three week wait, five hour drive. People who have childcare needs, who don't have a car; people who don't have health insurance... have never been able to access care. So it was... I mean, I... I managed to keep it together in the airport. And then, my husband picked me up. And I remember, just like... I just screamed and cried next to the car for a couple of minutes. Didn't want to like get on the road, because I was just too upset. You know it's coming, but like just the anger in the moment.
Diane Horvath
Just the irony of having been at this abortion clinic meeting, and to have it happen when we were there and to know like we were going to be going back to all of our spaces, knowing that this was coming down the pike and it was just a matter of time before it was official.
Ali Block
On June 24, 2022, just a month after the leak, The United States Supreme Court handed down the Dobbs decision, overturning the protections on abortion that Roe v Wade had afforded for so long.
Newscaster 1
"...The Supreme Court has just issued, and this is the decision many were waiting for a ruling, and..."
Newscaster 2
"The decision is out. It's been issued by Justice Alito. And the question of abortion has been returned to the states."
Newscaster 3
...overturned Roe v. Wade... overturned Roe v. Wade and the follow on..."
Ali Block
The moment Dobbs went into effect trigger laws in thirteen states immediately banned abortions. That number has now jumped to twenty-six states where abortion care is either illegal or highly restricted. What does this actually mean for the clinicians on the ground? The truth is, the answer has been different in every state, and sometimes even institution by institution. Tennessee was one of the first thirteen states to ban abortion outright. But Tennessee's trigger law was more restrictive than the others. There were no exceptions, which meant that within hours of the decision, performing an abortion of any kind, even one to save the life of the mother, became a felony punishable by time in prison. Nikki Zite was one of the doctors working in Tennessee, when the law went into effect.
Nikki Zite
No one in the family planning community was surprised. Everybody had been talking about these are the three options: Roe stands with no change; Roe falls, but it's a 15-week or something like that. And then, Roe falls completely. And on any given day, you could get five family planning people in a room, and you would get five different ideas of how they thought it was going to play out.
Ali Block
Nicki has kind of a no-nonsense way of talking. And when she spoke with us, she said that she had been anticipating this for years. Ever since she got into abortion care. For most of that time, she had been ringing alarm bells that abortion care should not be taken for granted. So after Dobbs passed, it was like everyone outside the reproductive care and family planning communities were scrambling to catch up to her reality, the one that she'd been talking about for years. There was this one case, a couple of weeks after the decision, where just like normal, she had to call the anesthesiologist.
Nikki Zite
I called the day before, and said, "I'm scheduling a felony for 11 o'clock tomorrow..." No. I said, "You know, we have a patient. There's still a fetal heartbeat, but her water broke at 12 weeks. She's 14 weeks now; she's starting to show signs of infection. And tomorrow at 11, we're going to proceed with the D&E." And, we always gave the heads up so that we made sure we had people in the operating room that were comfortable with pregnancy termination. And so when I got there, I said, you know, "Thank you for covering this case," to the anesthesiologist. And he's like, "Oh, I always do these. I'm fine with that." And I'm like, "Well, yeah, but thanks for aiding and abetting." And he's like, "What are you talking about?" And I'm like, "We're about to commit a felony." And he's like, "No, we're not. You told me that this is medically necessary." And I'm like, "Right. But our law says that it's a felony, even if it's medically necessary. And then, if I'm charged, I can defend myself in explaining why I felt like it was medically necessary." And just blank stare. And then he, like, turns around and calls the head of his department. Like, "She says it's a felony." I mean, like, I can hear him on the phone, right? "She says it's a felony. Babe, what is it?" And, they're like, "Yeah, it's a felony."
Ali Block
So shortly after Dobbs got handed down, it was clear to Nikki that the most important thing was to get everyone at their hospital to be on the same page, as much as possible, and to understand what their code of conduct was going to be.
Nikki Zite
And so, then we started out with these weekly meetings of the head of high-risk OB, the head of Labor and Delivery, the Chief Medical Officer of the hospital, the head of Anesthesia, myself, the CEO of the hospital, the lobbyist for the hospital, the ethicist for the hospital, and legal counsel for the hospital. And they kind of let me run the meeting. And I said, "Can we all agree that our goal is to continue to provide evidence-based, compassionate health care within whatever the confines of our law end up being?" We talked about: What can and can't we do here at the hospital? And then, what can or can't we tell patients about? Like, was there a gag order? Were we... And, I mean, our trigger law was two pages. Like, it didn't say very much. It basically said, "You can't do anything." So, pretty quickly, they came to the realization that what the law did or didn't say, was a lot worse than what they had assumed.
Ali Block
So Nikki and her colleagues made a document. It had a list of clinical situations, they felt like technically we're going to be illegal, but probably wouldn't be criminalized, as they didn't seem to fall within what she calls the intent of the law.
Nikki Zite
The care that we had been providing for medically complex patients, ectopics, miscarriage management, prior to whatever was going to be decided... we felt like it's probably within the intent of the law. We felt where the law was going to change our hospital-based practice, was going to be the care of someone that had been the victim of rape or incest, and the care if it was a life-limiting fetal anomaly. Those were cases that we had taken care of prior that were pretty clearly not going to be legal after the law. And so, we felt like that was something that we couldn't say we were still going to do, because it would be a much more, like, egregious violation. Whereas ending a pregnancy because of PPROM, we could say that really is, in my good faith medical judgment, life-saving health care.
Ali Block
So, these are basically guidelines that she and her colleagues wrote up, with some legal advice, but they knew there was no guarantee it would keep them safe. The information they were getting was still just so incomplete.
Nikki Zite
We were still confused, and we felt the law was vague. Like, if someone has a cardiac defect, and the cardiologist says that they have a 15% chance of dying, you know... We don't know. What if the DA or somebody disagrees and someone gets criminalized? And then we had people who are like, "I don't want to take call and be the first one that takes care of this situation. I don't want to be the first one that does this or that, unless I know that if that happens, I won't lose my job and the hospital will help pay for my legal efforts." Because up until that point, I really think that everyone just thought, "Okay, well, we have malpractice insurance; it'll pay for this." And I had to be like, "Nope. The malpractice people are like, "This ain't us; peace out. We don't do criminal." There's no malpractice for felonies.
Ali Block
And, it's also in their hospital contract. If employees are charged with a felony, they can be fired. So, they wrote up this document, brought it to the hospital administration and said, "Okay, if we all agree to follow these rules, (which is our best interpretation of the law), that provides the best care, can you basically not fire us? They got that protection, which was great. But in practice, it was still hard.
Nikki Zite
Care was still delayed, because we were calling lawyers or getting people to look at images three and four times, you know. When it was an ectopic that, like, previously, we would have been like, "Oh, that's an ectopic. Let's go to the OR or let's offer her methotrexate,"... Now, it was like, "Hey, you look at this and make sure you agree and put your name on it, too. And you look at this, and you agree, so that we can get a couple people in agreement, and therefore our defense would be stronger." I mean, my documentation is pristine. You know, I would quote the law, and then quote how I was complying with the law, per recommendation of counsel. And it certainly does not enhance my patient's medical care. It just takes up time and takes up space in my brain that I don't have any more. Like, should be making sure I remember all the medications to use when somebody bleeds during a surgery, not how to quote a law.
Ali Block
So at this point, she has followed these guidelines the best that she can. But she figures she's probably committed what the state would consider a good number of felonies anyway.
Nikki Zite
I mean, a fair number. I've definitely taken care of a couple of ectopics surgically, a couple of ectopics medically, lots of miscarriage management; not a lot of them that had a heartbeat. And then, a couple of true pre-viable PPROMS that are a little further along. But, all clearly medically indicated. I mean, the first one I did, the patient came in by ambulance with a pool of blood between her legs. So, while it still was a felony, I was very, very confident that I wasn't going to be charged.
Ali Block
And then, there was another case.
Nikki Zite
So, her water broke at like 12 weeks. And she was seen in the ER, and there was a heartbeat. And I don't think the OB team was notified. She was just given a follow up appointment in the office. And so then we saw her in the office, and my nurse practitioner immediately called, and said, "There's no fluid. She's 14 weeks. There's actually an IUD in the uterus with the pregnancy." You know..."Can somebody come down and see her now?" And, by the time the resident saw her, the resident felt like there was, you know, a foul discharge coming from her cervix. So, I felt like that was an easy decision. But then, she lost so much blood. We ended up having to give her a blood transfusion, and I remember thinking... (as I was hoping that she would stop bleeding, and just asking the Anesthesia doctors to give different meds that would help her stop bleeding), "Oh my god, I'm committing a felony, and she's gonna die." Thankfully, I work at a really good institution, that has a really good blood bank, and we were able to save her. It is sad that we had to use those resources, when maybe... If somebody would have called us at 12 weeks, I think she would have been more on our radar, and maybe it wouldn't have gotten to two weeks later. Lately, I wonder, like, "Am I truly you know, safe?" If there's so much happening, and my name is so out there. And people are crazy. I mean, I'm a Jewish abortion provider from Chicago, in the Deep South. My kid just yelled, "You're not in the Deep South!" I don't want to go to jail. I don't want to lose my medical license. I'm not practicing in a way that I think should cause that. I mean, we're different than the generation before Roe that was purposely providing illegal abortion care, because that was the way to fix this. And I don't think that's the way we fix it. Like, listening to stuff about "the Janes" and hearing about those things, I'm in awe of those people. But I'm not going to fix it by providing an illegal abortion for one person, or even 10 people or 100 people. Like, I need to fix it by drawing attention to this issue, trying to change the narrative that we've let the anti-choice movement control for so long, that makes abortion seem like such a black and white issue, when instead it is incredibly gray. And everyone comes at it from a different place. And we don't have to get to where we all agree on everything. But, certainly, we can do better than where we're letting the extremists on one side completely dictate care for so many people.
Ali Block
That line of messaging, as Nikki says, that this conversation about abortion has become so starkly black and white, is a very intentional tactic employed by anti-abortion activists over the last several decades, and a part of the reason that messaging has been so effective. Why the anti abortion lobby has been able to use such a creative, sustained and multi-pronged approach to dismantling abortion rights, is because many of those who would defend abortion access are occupied with the actual work of providing abortions. And that work has never stopped. Instead, Dobbs just made it harder, particularly for people in red states. In fact, one of the most striking aspects of the past year has been how differently the impacts have fallen across state lines. Despite the massive earthquake that Dobbs caused in places like Tennessee... In many other places, mostly blue states, the impact has been more muted. For instance, Diane Horvath and her business partner Morgan. After they left NAF, they did actually manage to open their clinic in College Park, Maryland.
Diane Horvath
We've been seeing patients since October of 2022. We have 18 staff members and we are actively recruiting for three additional positions. We're very, very busy. Our patients are coming from all over the country and across the world. In the first three months that we were opened, we saw people from 22 states and 3 countries. We're also looking at our three-to-five year plan, which is to be in a bigger building.
Ali Block
If anything, for Diane and Morgan, Dobbs has increased the demand they see from patients, particularly later abortions due to delays in accessing care in restricted states. In some ways, the hostility they face at a national level also seems to have cemented the support they feel from their local community.
Diane Horvath
The city of College Park has just been incredibly supportive. We had an incident a couple of months ago, where an anti-abortion group placed some really defamatory flyers all over the neighborhood. And the result of that... I think that they thought it would make people, like, turn against us, because they put our email address on the flyers. But actually, like people reached out to us and donated to our GoFundMe and offered to help support the clinic, like with security, it actually, like, allowed us an opportunity to connect with our neighbors.
Ali Block
In the year and a half since the Dobbs decision, we've seen this over and over: how disconnected and how out of touch the decision is with the actual beliefs and will of the people. As of this recording, abortion has been on the ballot in 7 states since the Dobbs decision. And every time, in red states and blue states, people have voted in favor of protecting those rights, not limiting them. Those who speak out against abortion are a loud, sometimes violent, minority. But mostly, Americans just want access to this basic health service.
Next week, we travel to Texas to investigate a piece of legislation that revealed what losing the right to abortion access would look like, before Roe actually fell. It was the culmination of the anti-abortion lobby's years of creative efforts, and it was called S.B. 8. What might we learn by looking at the first massively successful attempt to eliminate abortion rights? That's next week on The Nocturnists: Post-Roe America. See you then.