2. The Canary

SYNOPSIS

Before the Supreme Court’s Dobbs decision, there was S.B. 8—a Texas law that prohibited any abortion after 6 weeks, essentially banning it entirely in the state. In this episode, we hear from healthcare workers in and around Texas. What was it like to be an early witness to America’s crumbling abortion rights?

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featuring

Kiernan Cobb, RN

Bhavik Kumar, MD MPH

And others who wish to remain anonymous

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

The Nocturnists: Post-Roe America Series Primer

TRANSCRIPT

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The Nocturnists: Post-Roe America
Episode 2. The Canary
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.

Ali Block
Welcome back to The Nocturnists: Post-Roe America. I'm Dr. Ali Block. For a lot of people in the U.S., I think the day the sky officially fell for the abortion movement was the day of the Dobbs leak. But there was another event, almost a year before, that wasn't as talked about but gave those paying attention a preview of what a post-Roe landscape would look like.

In September 2021, there was a bill in Texas, that was passed, called S.B. 8, also known as the "Texas Heartbeat Act". It said if you can detect cardiac activity, which usually happens around six weeks (a time when most people don't even know they're pregnant), performing that abortion, or even aiding and abetting a patient in seeking abortion care, makes you vulnerable to a lawsuit from any private citizen.

Bhavik Kumar
So, when S.B. 8 happened, it was just Texas.

Ali Block
This is Bhavik Kumar. He's a doctor living in Houston, who was providing abortions there, right when S.B. 8 came down.

Bhavik Kumar
The rest of the country had some access to abortion care. Nobody had a ban like Texas. And we had that ban for about 10 months. So, there was curiosity. People wanted to know what it was like; there was a lot of sympathy. And a lot of what I was trying to do was to get people to be ready, and share what we were experiencing. Sort of calling out, "This is going to come to other states. This is going to happen, whether it's with this decision or another decision, this will happen soon." So when the Dobbs decision happened, and people were all of a sudden having to shut down their clinic overnight, or drastically reduce the kinds of care that they were providing, this was shocking for so many people. But it's something that we had experienced for a long time.

Ali Block
A long time, meaning the ten months of S.B. 8 before Dobbs, but honestly before that, too. We talked to a lot of Texans for this episode. And it was like talking to people who had to deal with the destruction of Godzilla, before it made its way through the bigger cities. In this episode, we're going to hear stories from Texans and providers in neighboring states about what it was like to be on the leading edge of America's crumbling abortion rights. To start, we're going to go all the way back to the Texas before S.B. 8.

Bhavik Kumar
So, I'm from Texas. We moved here when I was about 10. And Corsicana is really a racist town: there's a railroad track that divides where the Black people live and the white people live. Of course it's not law, right? But that's kind of how it is. The parking lot of our high school, the white people parked on one side and the folks of color parked on the other. Straight line in the middle, and it's a clear division. Same thing in the cafeteria. You walk in... All the white people sit on one side and the Black and Brown people sit on the other side.

Growing up, you would see that the white folks would have sex, and drink and go to parties, but they were going to church and signing up on their abstinence pledges. So, they had access to whatever they needed; they lived the lives that they needed. And then, you'd see the Black and Brown folks that, you know, had very different access to things. I think for me, as a gay Brown kid, I was in the shadows. I was trying to be quiet. And so, I was observing so much of that. And then I'd think about the stories that I would hear about kids in high school drinking bleach. You know, that was always Black and Brown folks. It was never the white girls, right? They always went off to Dallas and came back not pregnant.

Ali Block
And when Bhavik went to medical school in West Texas, in the city of Lubbock, he learned that this kind of unspoken segregation wasn't isolated to his little corner of the state. And that included access to abortion.

Bhavik Kumar
I was in one of the most conservative parts of the country, a city that has a church on every corner, and some of the highest rates of teen pregnancy and teen STI rates. Yet they preach abstinence. There was one clinic in Lubbock at the time. And, you know, Lubbock has a pretty big medical center. And it just seemed jarring that such a common medical procedure wasn't as readily available. There's one clinic, with one physician, that flies in on the weekends. Once I learned more about the landscape throughout Texas, I thought, "We deserve better." And that sort of propelled me to find training. And there wasn't any comprehensive program in Texas that had integrated abortion training, and so that meant I had to go out of state.

Ali Block
So he went to New York, which was a huge breath of fresh air. Culturally, politically, logistically: everything about providing abortion care felt easier. He loved it. But as tempting as staying in New York was, he knew that ultimately, his home was in Texas. And so he returned soon after graduating, now a licensed clinician and abortion provider. He said as soon as he got back, his work felt like a battleground.

Bhavik Kumar
It's hard to have a vision when you're constantly on the defense. And, I think part of providing abortion care in Texas at that time, was the state was so aggressive. They were constantly passing bills. There were regulatory things that were happening with our Department of Health. Residency programs in the state's medical schools not having curriculum. It was just so layered, that it was difficult to have a vision.

Ali Block
It was around this time that Texas tried passing legislation that would ban most second trimester abortions. It gained significant support in the House, but was ultimately stopped by the courts. They did manage to ban government entities from being associated with clinics that provide abortions, and that shuttered a lot of clinics in the state. And not just clinics focused on reproductive care, many clinics that provided basic health care. And while none of these efforts outright banned abortions, the state was creatively, and very effectively, whittling away abortion access. Meanwhile, Bhavik was making his way as a young abortion provider in Texas, finding light in the daily work of providing abortion care to a community he had grown up in, and learning the ropes on how to navigate the increasingly complex set of rules and restrictions in the state. And then, things got worse,

Bhavik Kumar
S.B. 8 was something that we were following since January of that year. And, when it was actually passed, we knew that the governor was going to sign it because of his pattern and history and rhetoric. And, it was going to go into effect September 1st. So, August 31st of that year, I was in the clinic, providing abortion care. We stayed there... I think I left at about 10pm, which is not our usual. But the goal was to see any and every patient that we were able to.

So, Texas has a law where the same doctor who does the ultrasound has to do the procedure, so that meant that was just me. I didn't have help with two of my colleagues, but they could help with some of the other things so I was thankful for them being there. And so we saw every patient that we possibly could. I think we saw almost 60 people that day for abortion care. And then the next day, when the law went into effect, about half the patients I saw qualified for an abortion under that law, and then half of the patients we had to refer out of state.

Over the first month or two, it was extremely devastating. I can still have flashbacks of people crying, and asking for help. Telling me what's happening in their life, why they can't be pregnant. It... it was just so heavy, because, you know, we go through so much training and security risks and safety assessments, because we know exactly why this care is so important. And then you have somebody begging and pleading with you. And... and I'm not the person that needs to hear any of that. I want to provide this care for you. But, in that moment, that person is there, with a health care provider who should help them. They don't need to reckon with the state, and this law, and who passed it and who introduced it, and why did... That's not important to them. "You're a doctor. Help me."

I've literally remembered having these conversations, and I could feel my hands starting to move, and my mouth starting to, like, think about... Could I? This would be three minutes and this person's life would be so different. Of course, we never did that. It's illegal to do. But the instinct, I think, as a physician, to want to do that, to think about if we could do that was always there. Because that's what we do as healthcare providers, is when somebody has a problem when we talk to them, and we help them feel better. That's our job. And overnight that turned into having to be the faces that told people, "No." That "You can't... We're not able to; you're not allowed." And, to have this look of betrayal on our patient's face. And this look of hopelessness and despair, and desperation, just turned the work into something completely different from what we all signed up for.

What we've seen over time is that the things that happen in Texas don't stay here. The gravity of what we experience in Texas, given the population and how big of a state and how many people live here, are lessons for people in other states. That, you know, have soon experienced the things that we did in our state.

Ali Block
So what does that mean? It means that if you live far away from Texas, by distance or by culture, there was a tendency to think that after S.B. was passed, that this was just a Texas problem. But, as everyone soon learned, there were immediate ripple effects. For one, conservatives copy conservatives. A successful passing of something like S.B. 8 was a clue as to where the anti-abortion movement could move next. But then, on an even more basic level, an estimated 85% of abortions performed in Texas, pre-S.B. 8, took place after the fetus was six weeks. Since Texas couldn't perform any of these abortions in their state anymore, another state had to absorb that volume, and it would likely be an immediate neighbor, like Oklahoma.

Newscaster
All right, Matt, Thanks, Arkansas. Oklahoma is seeing an increase in abortion patients from Texas. Of course, this comes just weeks after Texas approved the nation's strictest abortion law. 5 News reports.

Kailey
Texas is a huge state, and they went from 20-ish providers to none.

Ali Block
That's Kailey, the clinic director at the Oklahoma City clinic called Trust Women.

Kailey
Yeah, it was insane. I think we were getting 200 phone calls an hour.

Kiernan Cobb
Yeah, we saw a lot more patients, and a lot more complicated patients, after S.B. 8, in Oklahoma City.

Ali Block
That's Kiernan Cobb, a nurse at the same clinic.

Kiernan Cobb
It was, like, some really wild increase in the number of patients. And we started seeing a lot of patients who were much further along. We became pretty much like a second-trimester clinic, just because of the wait times. And, just like, nobody in Texas was getting seen under six weeks. It's virtually impossible.

Ali Block
What they experienced at the Trust Women clinic after S.B. 8, was a microcosm of how the Dobbs decision would create its own immense downstream effects. Think of abortion access like a river. There was this stream of people from Texas who had been receiving care from the local clinics, but who had suddenly been turned away. It was like the river had been dammed. And crucially, for many of those patients, the new barriers and restrictions were prohibitive enough that they weren't able to pass the dam at all, and seek abortions in other states.

But what also happened, was that the stream of patients who were able to gather together the resources necessary to travel (time off work, money for travel expenses, child care), those patients were diverted elsewhere. And Trust Women was there to receive them. Meanwhile, they were also bracing for the possibility that this political move in Texas might be writing on the wall for Oklahoma.

Kiernan Cobb
Oklahoma tends to pass the same things as Texas, but implements them a little bit less effectively. Like, Texas DHHS, which is like their health and human services, whatever, has a lot of power, and a lot of people. So they would come into the clinics, and do audits and really reinforce things. Oklahoma passes the same shitty laws, but doesn't enforce them as effectively. Like, I don't think that a state inspector ever came through the Oklahoma abortion clinic. But we do have similarly Draconian laws that are passed here.

Ali Block
It wasn't before long that they saw a copycat bill, one that replicated the language of S.B. 8, but this time for Oklahoma.

Kiernan Cobb
It was hard to be in a "just work" mode, because we were checking in patients and refreshing the legislative tracker, to see if they had signed it yet. We didn't want to schedule patients from Texas, have it get signed, and then have to send them back, basically.

Kailey
And then, our governor who loves everything that Greg Abbott does, signed our bill in May. So we were actually the first state to lose legal access, and that was before Dobbs.

Ali Block
It started as direct copycat, the same 6 weeks deal. But, as it passed through the House and Senate, the language on the bill tightened up. This time, Oklahoma wasn't actually less effective. The new bill ended up being more restrictive than S.B. 8.

Kailey
We had a four-week ban, a fertilization ban.

Ali Block
By May 2022, Oklahoma had a near total ban. Kiernan told us that, to them, in some ways, it was even more devastating than Dobbs.

Kiernan Cobb
Just like, it's over. It's like my ability to do my job here, to serve patients. To do this service that I had spent 10 years, on and off, in the movement, working to be a really good care provider, is over.

Kailey
Still have it somewhere, yeah. We got the letter from the Health Department? Attorney General something? Let me find it. Let me just grab it. I just keep it pinned on my calendar. It says on April... Okay, so this is related to... Okay, so on April 21, 2021, Governor Kevin Stitt signed Senate Bill 918, as amended by Senate Bill 1555, which repealed all restrictions and rules…

Ali Block
Basically, the bans and restrictions had been stacking up for a long time in Oklahoma, like they had in so many states, held only at bay by the thin membrane of Roe v. Wade. When Roe fell, it caused an immediate trigger ban to go into effect in Oklahoma, making abortions at any stage in pregnancy punishable as a felony. Oklahoma was already two months into an essential total ban on abortion. But, without Roe, it felt like all hope of, maybe, climbing out of this pit of restrictions was lost.

Kailey
It's kind of like a death, right? So, it's like a... And it's... it's just funny. Like, I don't know... I don't know why it's funny. To me, it's just that kind of grim, like finality. It's done. But, using it as a motivator, to be here and be present. And, you know, again, one day when we can do abortions again...like... So I'll, like, I'll burn it, or shred it. Maybe one day, I'll get it framed.

Kailey
You know. So, you know, I think... You know, we all try to separate, like, our work, you know, from our identity. But it's a big part of my identity, you know. I've been doing it for... My whole, like, professional career has been about abortion.

Ali Block
Soon after Dobbs, Trust Women pivoted to providing gender-affirming care, care for drug users, and general all-around reproductive care.

Kailey
But, how can I use that... that passion, and that care that I have for people that need abortions, to care for people that have different needs? I mean, even when you think about, you know, abortion care, like queer people have abortions, trans people have abortions, people who use drugs have abortions, right? And how can we provide the best care to them, the lowest barrier care to them, you know, the most compassionate care? So, our last several months has just been a lot of like planning and learning and trying to build a system that we can take care of people.

Ali Block
It was becoming increasingly clear that the United States was being carved into two halves, one that protected the right to abortions, and another that sought to eliminate that right. Among those who felt this split most acutely, were the handful of providers spending time in both Texas and less restricted states. To learn more, we talked to a provider who had been spending half her time in California, and half her time in Texas, close to the border of Mexico. Because of the precarity of her position, she requested to remain anonymous, so we'll call her Lydia. Lydia told us that after S.B. 8, the culture clash between her two medical worlds became sort of intolerable.

Lydia
There was certainly misunderstanding. And, when I say that, I mean on the part of those whom I would have expected to be our allies.

Ali Block
One thing she heard a lot was, "Well, at least Texans can still receive care somewhere else." But she told us, it's just not that easy, especially in a state that is home to an estimated 1.8 million undocumented immigrants.

Lydia
I can't even begin to explain to people how hard this is, or how big Texas really is, to folks who don't live here, right? That getting from the far south border, the Rio Grande Valley, to New Mexico, which would be the closest... Depending on where exactly you're coming from, that could be a 13-hour drive, one way. It's extraordinary the lengths that somebody might have to go to. To seek care for those who might be undocumented, getting outside of these areas...

We have border patrol at the airports. That is not the case in anywhere else I've ever been, or ever lived. Driving down the highway in these areas, you have to go through Border Patrol checkpoints. That's not something that people who don't live in these areas know about. So whenever the response is just like, "Well, it's legal somewhere. You can just travel, if you really need that," it is not that easy and nor should it be a requirement.

Ali Block
The way S.B. 8 was written not only prevented clinics from providing abortion care in Texas, it also made it dangerous for Texas providers to even counsel their patients on the option of getting an abortion elsewhere. The law was smart, really smart, and intentionally written to bypass the protections that Roe had offered. Instead of relying on state officials to enforce the ban, using civic or criminal penalties, S.B. 8 empowered private citizens to sue any person who provided, aided, or abetted abortion, after a fetal heartbeat could be detected. This meant doctors, nurses, health aides, even potentially taxi drivers bringing a person to get an abortion. It also meant that the federal court injunctions that usually sprang up, against statutes like this, couldn't occur. Abortion providers would have to break the law first, then wait for a private citizen to sue them before they could even think about challenging the constitutionality of S.B. 8.

Lydia
It was infuriating to me how often people from the safe states, I would hear, essentially criticizing us and being like, "What are these stupid doctors doing? Why aren't they standing up? Like, if I was there, I would just do it." And it's like, "The hell you would. You want us to, like, stick out our necks, and risk a lawsuit or you know, what could devastate a career for a physician?" ..."Oh, those stupid Texans" kind of comments... I think it was not recognized for how severe this really was... That you're talking about, like, single digit numbers of doctors who are even still working and doing these services anymore, because of how many restrictions are in place. And you're talking about 10% of the United States population is being affected by this. So, yeah, this is a very substantial number of folks that you're essentially writing off, and just being like, "Uh, whatever, it's Texas."

Ali Block
So what were your options if you were an abortion provider in Texas at the time? Despite the dangers, one person did actually risk the lawsuits, a physician named Dr. Alan Braid, who was close to retirement, and performed an abortion for a fetus with cardiac activity. He published a piece about it in The Washington Post, and ended up getting sued by a few people. But all the lawsuits came from people outside of Texas, so he was never prosecuted. For most people, though, the possibility of a lawsuit just felt too "high stakes". Every single procedure, every single conversation even, carried the potential of ruining your entire career.

Lydia
I think the rest of us were just looking at it as, like, "I want to keep working." I want to try and be able... Like, I am more valuable, working and seeing patients, and doing everything I can to take care of patients on a day-by-day basis, than for me to have my work halted while I go deal with a lawsuit. And then, not knowing if I'm going to be able to practice after that. Because, again, we don't know what the fallout is going to be.

Ali Block
So for Lydia, what feels right is to stay in Texas, keep providing the care that is still allowed and be a trustworthy medical presence, especially when the landscape has gotten so barren.

Lydia
So, you know, what made me want to stay at all was basically be a safe space for patients who need to be able to talk about this with a doctor.

Ali Block
This is becoming harder and harder to come by. Not too far from most places that used to be abortion clinics, you'll find at least one "crisis" pregnancy center, fake clinics, often faith-based, with names like "Choices", "Birthright", and "Next Steps". They lure patients in with promises of free ultrasounds and other services, and are notorious for giving false information.

Lydia
These are not medical professionals. They may not even be doing a real sonogram on the patient. Because, their tactic for a very long time now has been to lie to women about how far along they are. So pre-S.B. 8, they would lie to people and tell them that they were further along. Because then they wanted to show them pictures of, like, "Look, your baby has hands," and like, you know, "Look how developed it is," and stuff like that. And then we would see the patient and be like, "Oh, you're like five, six weeks. Like, it's a little tiny blob of cells." And the patient was like, "What are you talking about? I was just over there at this other place, and they told me I'm like 10 weeks." I was, like, "Yeah, no, you're not. So, whatever you were seeing, whatever pictures they were showing you, it was like not your pregnancy."

So then during S.B. 8, they switched their tactic, and they started telling people, "You're too early. You're... You're so early, you have time to decide." Well, what we really knew is at that time, time is of the essence. So, literally every day, it could be like "You qualified yesterday and today you don't." So, we would oftentimes have patients then, post-S.B. 8 who came in, and they're like, "No, they told me they can't see anything. There's nothing there." And I'm like, "Yeah, you're like bumping up on six weeks right now, and it's clearly visible." So, that's... That's who we have giving women advice in this community right now. And I feel like a different voice needs to be ther. Somebody needs to be getting legitimate information.

Ali Block
Since Dobbs, Texas now has a near total ban, like Oklahoma. The punishment for performing an abortion is up to 99 years in prison. So people like Lydia and Bhavik, they can't provide anymore. But they each told us that they're trying to continue their activism in their own ways. Lydia says she wants to open up a new clinic in her town, where she can at least provide trustworthy care and accurate medical information to her patients, before they have to go somewhere else. For Bhavik, he's just continuing his activism by staying vocal, talking to the press, and providing the care he can, like gender-affirming care.

Bhavik Kumar
Really, it's... For me, directly with patient care, I always feel hopeful. You know, even when I'm not able to help people with what they need, I can do the next best thing, which is not my choice. But that's what I'm able to do. Right now I'm still able to provide trans care. So that's probably the most joy I feel, when when I see a patient and I can actually meet their needs. And they can tell me what their hopes are. We can talk about a plan and that's what they want. That gives me a lot of hope.

It's I think, for me, it's an awareness: every patient, every interview, every podcast, every little thing has sort of like a drop, and it has a ripple effect. And it's this, sort of slow, almost soundless, little motion, that when it amplifies with everybody else's work and all the other work that I've done, it creates this drumbeat that goes in the direction of us moving in the direction that we want to move. Us taking our rights and our power back.

Ali Block
So abortion is no longer legal in Texas. And since S.B. 8 first passed, the rest of the country has now experienced, in a way, what Texans did all the way back in 2021. They're no longer "Chicken Little" yelling at the rest of the country to listen. We're all here together.

Next week, we follow the wave that started in Texas and slammed into Oklahoma, as it continues its trajectory and crashes right into Kansas. What happens when a small town abortion clinic becomes the only provider for an entire region of the country? We hope you'll join us next week. Until then, this is The Nocturnists: Post-Roe America. And I'm Dr. Ali Block. See you next time.

The Nocturnists: Post-Roe America was created by me, Ali Block and Emily Silverman. Our lead producer was Molly Rose-Williams and our producers were Sam Osborn and Jessica Yung. Jon Oliver helped with the mixing and Carly Besser assistant produced. Thanks to medical student producers, Anjali Walia, Dahlia Kaki, Fiona Miller and Mulki Mehari, and pre-health intern, Treya Tompkins. Our Chief Operating Officer is Rebecca Groves. The series illustrations are by Nicole Xu. The Nocturnists theme music is by Yosef Munro and all additional music comes from Blue Dot Sessions.

The Nocturnists: Post-Roe America series was made possible in part by the Josiah Macy Jr. Foundation. The Nocturnists is supported by the California Medical Association, a physician-led organization that works tirelessly to make sure that the doctor-patient relationship remains at the center of medicine. To learn more about the CMA, visit cmadocs.org.

Our show is also made possible with donations from listeners like you. Thank you for supporting our work in storytelling.

If you enjoy our show, please follow us in your favorite podcast app so you don't miss an episode. You can also help others find us by telling your friends and colleagues, posting this episode on social media, and leaving us a rating and review in your favorite podcast app.

To contribute your voice to an upcoming project or to support our work with a donation, visit our website at thenocturnists.com. You can also find resources with more information about the state of abortion in the U.S., as well as ways to advocate and get involved, at the series website. I'm your host, Ali Block. See you next week. Thank you.

Post-Roe AmericaThe NocturnistsSeptember 28, 2023