Can these documentaries change the way we think about abortion?

UPDATE: The Supreme Court ruled 5-3 in favor Whole Woman’s Health June 27, striking down two key provisions of Texas House Bill 2.

There’s an utterly chilling moment in one of the most important documentaries of 2016. It illustrates just how much may be at stake in this year’s presidential election.

A 13-year-old rape victim — she lives in Texas — is staring down the prospect of being forced to carry an unwanted fetus to term. She is 20 weeks and five days pregnant. Texas outlaws the procedure after 20 weeks. The film, Trapped, from director Dawn Porter, ends without us knowing whether the girl was able to obtain an abortion.

Through tears, Marva Sadler, the Whole Woman’s Health clinician caring for her, states the girl’s seemingly inevitable reality: “She drove four hours from McAllen to San Antonio and we had to turn her away and there was nothing I could do to save her. If she has a procedure, and that if is huge, she’ll have to go all the way to New Mexico and pay $5,000 and get there and spend three days. It’ll never happen. We know it won’t. In those cases, I feel like it’s an automatic sentence to parenthood.”

The nation is awaiting a decision, due to arrive this month, in the Supreme Court case Whole Woman’s Health v. Hellerstedt to find out whether or not TRAP (Targeted Regulation of Abortion Providers) laws, which helped create the victim’s situation, present an “undue burden” to women seeking abortions in Texas.

This year, two excellent documentaries addressing abortion access have premiered: Trapped and Abortion: Stories Women Tell, from director Tracy Droz Tragos. Trapped, which premiered at Sundance Film Festival, explores the effects of TRAP laws on women and abortion providers in Alabama, Mississippi and Texas, while Tragos’s film offers accounts from 32 Missouri women and girls who agreed to discuss their reproductive health decisions on camera. TRAP laws and other state laws aimed at curbing abortion disproportionately affect poor women and women of color.

“It’s extremely important to point out how devastating lack of reproductive access is for black women, for Latina women, for poor women,” Porter said. “I do not mean in any way that all black or Latina women are poor. I want to be really clear about that. That is not what I’m saying. But to the extent that communities overlap, poverty is an issue that is really intricately entwined with reproductive access. If you’re working a minimum-wage job, and you have a child and you’re a single parent and you have an unplanned second pregnancy, that can be the thing that tips you out of the workplace. And it’s very hard to come back economically from that.”

The plaintiff in Whole Woman’s Health v. Hellerstedt refers to a group of reproductive health clinics operating in Texas. Whole Woman’s Health also has clinics in four other states. The “undue burden” standard comes from the 1992 decision in Planned Parenthood v. Casey. The court affirmed a woman’s right to obtain an abortion in Roe v. Wade in 1973. In Casey, the court said that states could regulate the procedure as long as such regulations did not present an “undue burden” to women’s abilities to access them.

Outside of the reproductive rights community, the significance of the Whole Woman’s Health case and the issues surrounding it seems to have been lost. It certainly wasn’t a major issue during the Democratic primary season, and incensed by the omission, presumptive nominee Hillary Clinton tried to make it one. “We’ve had eight debates — this is our ninth,” she said during a Brooklyn debate with fellow Democratic presidential candidate Bernie Sanders. “We have not had one question about a woman’s right to make her own decisions about her reproductive health care. Not one question!”

The CNN showdown took place April 14, two months after Supreme Court justice Antonin Scalia died in his sleep February 13. Scalia, the most conservative justice on the court, was a reliable vote against reproductive rights. His death left a litany of questions about the Whole Woman’s Health case, argued before the court March 2.

SCOTUSblog has a comprehensive rundown of the issues and arguments, but the quick and dirty version is this: It’s difficult in about half the states in the U.S. to obtain an abortion and conservative legislators in those states want to make it even more difficult. Last year, the Guttmacher Institute, a reproductive policy think tank, reported that states enacted 231 laws in the past four years aimed at restricting abortion.

TRAP laws such as Texas House Bill 2 (the law then Texas State Sen. Wendy Davis famously filibustered for 11 hours in 2013) are notorious for setting up regulatory roadblocks that prevent existing abortion clinics from operating. HB2 requires Texas abortion doctors to have admitting privileges within 30 miles of the clinic where they practice, and stipulate that such clinics follow the same building codes as outpatient surgical centers. Before HB2 was adopted, there were 41 clinics in Texas. Nineteen remain to offer services to 5.4 million women of child-bearing age in 254 counties spread over more than 268,000 square miles. After HB2 became law, the Center for Reproductive Rights (CRR) challenged it, and the law was upheld by the U.S. 5th Circuit Court of Appeals. CRR and Whole Woman’s Health then appealed to the Supreme Court. If the court upholds HB2, another 10 clinics would be forced to close. While the number of clinics has dropped, demand for their services has not. As we see in Trapped, the remaining clinics have been forced to turn away patients as they try to absorb those from clinics that have closed.

Before Scalia’s death, the Supreme Court was balanced evenly between four conservative justices (Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts) and four liberals (Ruth Bader Ginsburg, Elena Kagan, Sonya Sotomayor and Stephen Breyer) with Anthony Kennedy acting as the swing vote. Then Scalia died. And now:

A 4-4 tie in Whole Woman’s Health case would allow the lower court ruling to stand in Texas, but would not set a nationwide precedent, in which case the issue would have to be revisited by a nine-justice court.

If a majority of the sitting justices, say 5-3, vote to overturn the 5th Circuit decision, it would create a precedent and render HB2 and other state laws like it unconstitutional.

If a majority vote upholds the 5th Circuit decision, many in the reproductive rights community fear that state legislatures would have carte blanche to declare open season on abortion access.

“One of the biggest challenges we have is TRAP laws are incredibly hard to explain to people, why they threaten access,” Porter said. “Because they sound reasonable — and it’s one of my biggest objections to them. Because they don’t sound like they are closing clinics, people don’t see what the big deal is.”

If you’re a middle-class woman with good health insurance and an emergency fund, the consequences of such legislation aren’t felt so acutely. But if you’re a pregnant woman seeking an abortion and you are poor, if you don’t have health insurance, if your health insurance doesn’t cover abortion, or your job — or multiple part-time jobs — don’t offer paid leave, the ramifications of these regulations are that a small life crisis quickly balloons into a catastrophic stress volcano. For a woman trying to escape an abuser, or a girl who’s been sexually assaulted by someone close to her, it gets even worse.

According to reproductive rights advocates, years of state-level restrictions on abortion access, such as TRAP laws, waiting periods, ultrasound requirements and mandatory counseling that require doctors to give their patients scientifically inaccurate information (like that abortion causes breast cancer, which is untrue) have worked to peel back abortion rights guaranteed by Roe v. Wade.

“Somebody has to speak up for women and for Planned Parenthood and for health services no matter what,” Tragos said. “I wish it wasn’t such a politicized issue. Of course I wish it wasn’t necessary and that it was just kind of a given and that women could get the care that they need when they need it. It’s a private, personal matter, and I’m really hopeful for [Clinton’s] candidacy at this point because the alternative is terrifying.”

Clinton’s first speech after acknowledging that she’d become the first woman in American history to become the presumptive presidential nominee of a major party was an address to Planned Parenthood.

Her opponent, presumptive Republican nominee Donald Trump, has said Planned Parenthood “has done very good work for millions of women” but that he would yank federal funding, which does not cover abortion, from the organization if it continued to offer abortions. In a March town hall hosted by MSNBC’s Chris Matthews, Trump said that for women who obtain abortions, “there has to be some form of punishment,” an assertion he later walked back.

This year’s presidential race has been so filled with oddities that they’ve overshadowed the fact that, once again, the country is facing an election in which women’s reproductive rights hang in the balance. For many, access to abortion isn’t something women think about until they need it and time is of the essence.

“Unless you’re in one of these states,” Tragos said, “it’s hard to imagine what that’s like, what the impact of [laws restricting access] is. It may be legal at a federal level, but it’s simply inaccessible unless you have a lot of money and unless you can travel and take time off work and find people to take care of the kids that you may have. For working women, low income women, it becomes inaccessible. Making this film, I saw what that was like for women who wanted to have an abortion, who wanted to have an education, or wanted better for their lives and because they couldn’t access an abortion, they couldn’t follow through with the plans they had for themselves.”

The documentaries from Porter and Tragos also work to eliminate the culture of silence and shame that fuels so much misinformation about abortion, a procedure that 30 percent of U.S. women undergo by age 45, according to Guttmacher. Trapped and Abortion: Stories Women Tell are not the first documentaries to tackle abortion with the hope of cutting through political rhetoric. In fact, there are enough films, like Abortion Diaries (2005) and 12th and Delaware (2010), at this point that documentaries about abortion are often marked by dismal tropes: protesters holding gruesome images who insist on badgering women outside clinics, harried providers who face death threats and pregnant women caught in the middle.

But in states where access to abortion is sparse, such films are still practically verboten, or close to it. In Alabama, where Gov. Robert J. Bentley recently signed a law banning abortion clinics from operating within 20 feet of a public school, Trapped aired at 3 a.m. on public television instead of prime time.

It’s difficult to know exactly where Americans stand on abortion because much of the polling about the subject is flawed, as Vox’s Tresa Undem explained in a series aimed at tackling the subject. But both Trapped and Abortion: Stories Women Tell endeavor to help the public understand the subject better by removing it from legislative debates and focusing squarely on the people directly affected by TRAP laws and other similar policy: women.

Speaking at the Obama administration’s recent United State of Women summit, Planned Parenthood president Cecile Richards noted how much she and others in the reproductive rights community were hoping for a favorable decision in Whole Woman’s Health case. Said Richards, “A right isn’t worth much if you can’t access it.”

Trapped made its PBS debut June 20 and can be viewed on the Independent Lens website until July 21. Abortion: Stories Women Tell is coming soon to HBO and is currently playing at the AFI Docs Film Festival.