Posted by In January 2023, whenever Kathryn Archer took her young daughter out to the local playground in Nashville, Tennessee, strangers often noticed her visibly pregnant stomach and wanted to make small talk.
“When are you due?” they would ask Archer. “Do you know if you’re having a boy or a girl?” “Oh, I bet your daughter’s so excited to be a big sister.”
Archer did not know how to tell them the truth: in early January, Archer’s fetus had been diagnosed with several serious anomalies that made a miscarriage likely. If Archer did give birth, her baby could only be treated with surgeries and lifelong help – pain that Archer was unwilling to put a newborn through. Without those surgeries, which the infant might not survive, Archer’s baby would die shortly after birth.
But due to Tennessee’s near-total abortion ban, Archer could not terminate her pregnancy in her home state and, instead, had to wait more than three weeks for an appointment at an out-of-state abortion clinic.
“I don’t want to confide in a stranger that I’m having to get an abortion because my baby can’t survive outside of my womb and I can’t get the care that I need as soon as I need it,” Archer recalled thinking. “Those three weeks were really bizarre, challenging, painful – beyond what it needed to be.”
In the nearly two years since the US supreme court overturned Roe v Wade, 16 states have implemented near-total abortion bans. In theory, these bans have exceptions that permit people to get medically necessary abortions – but in practice, doctors and patients say, these exceptions are worded so vaguely that they are unworkable, prompting doctors to delay care out of a fear of running afoul of the law. Dozens of women from states like Texas, Idaho and Oklahoma have come forward to say that they were denied abortions they should have been legally entitled to.
Archer is now one of seven women in Tennessee who, along with two doctors, have sued the state, asking a court to clarify the scope of the state’s exception for medically necessary abortions.
Currently, Tennessee doctors can use their “reasonable medical judgment” to perform abortions in severe emergencies, but abortion-rights supporters say that the standard is vague and subject to interpretation, leaving well-meaning doctors vulnerable to prosecution. Lawyers from the Center for Reproductive Rights, which is representing the women, instead hope to establish that doctors can use their “good faith medical judgement” to perform an abortion when continuing a pregnancy would be unsafe. They also want to allow abortions if a fetus is unlikely to survive a pregnancy and sustain life after birth – as in Archer’s case.
On Thursday, almost all of the women in the lawsuit will gather at a courthouse in Nashville for a hearing in the case.
“I felt like if I can share our story and join this lawsuit, and even just change one person’s experience, that would be worth it to me,” Archer said.
Archer and her husband decided to start trying for a second child right around the time Roe fell. A longtime supporter of abortion rights, Archer was aware of the risks that Tennessee’s abortion ban posed to her pregnancy.
“‘What if I have a miscarriage? What if something were to happen in the pregnancy?’” she recalled thinking. “But I was pretty much only thinking about the first trimester.”
Archer’s pregnancy appeared normal throughout her first trimester of pregnancy and into her second. In early January 2023, at her 20-week anatomy scan, Archer learned that she would be having a girl.
Then the doctor told her: “There are diagnosable abnormalities from head to toe in this baby.”
A follow-up visit with a specialist confirmed that the fetus, who Archer and her husband named Cecilia, had a litany of health issues, including brain damage, a bladder located outside the body and severe spina bifida that left the spinal cord and nerves exposed. These anomalies, the specialist told Archer, made it unlikely that Cecilia would make it to birth, according to Archer’s lawsuit.
Continuing the pregnancy, rather than ending it, would also pose more risks to Archer’s own health.
“After that scan, both my husband and I felt really strongly that the best thing for us to do and for our family would be to terminate the pregnancy,” Archer said. “Our doctors were incredibly supportive. They cared for us in so many ways, but their response was, essentially: ‘Our hands are tied now. We can’t help you anymore.’”
Archer and her husband immediately started trying to find an appointment at an abortion clinic in another state. Since so many abortion clinics had shuttered in the wake of Roe’s downfall, multiple clinics were booked up for weeks, pushing Archer deeper into a pregnancy that could threaten her own health and increase the risk she would be forced to give birth to a stillborn baby.
US abortion clinics performed more than 1m abortions in 2023, a record high. But that number clouds a more complex reality: abortion bans have shuttered numerous abortion clinics in the south and midwest, leaving the remaining clinics on the coasts deluged by a flood of patients from states with abortion bans. Abortion clinics in Kansas, where Archer initially tried to book an appointment, now treat roughly double the number of monthly patients that they saw before Roe fell, one recent analysis found.
Only a handful of US clinics provide abortions past about 24 weeks of pregnancy. Abortions also take longer and become more expensive later on in pregnancy.
Ultimately, Archer was able to secure an appointment at a Washington DC, abortion clinic, about three and a half weeks after her 20-week anatomy scan. Due to the wait, “it went from a one-day procedure to a three-day procedure,” Archer said. “They give her a shot to essentially stop her heart. And then I had to come back 24 hours later, so there was this period of time where she was no longer alive, but she was still in my body … Had I been able to get the procedure sooner, I wouldn’t have had the longer, slightly more complex procedure.”
An abortion fund and a church helped Archer and her husband defray some of the costs, but they still had to pay more than $10,000 out of pocket.
“We had really good care because we have resources,” Archer continued. “Had we not had those resources and that privilege, I don’t know what we would have done.”
One of the other women involved in the Tennessee lawsuit also learned that her pregnancy was unlikely to result in a healthy baby, but was unable to get an abortion. Against her will, the woman continued her pregnancy and delivered a stillborn son 31 weeks into her pregnancy.
Archer is now pregnant again and set to give birth in May 2024 – almost exactly one year after Cecilia’s due date.
Ahead of the abortion, Archer and her husband promised to scatter Cecilia’s ashes near water. “I just felt like, on a spiritual level, that I was really connected to her when I was near the element of water,” Archer said. They also pledged to take a hike every year in her honor.
“We did a lot of ritual around death and saying goodbye,” Archer said. “It felt like – at every stage, for her and for our family – we’re doing the right thing.”