When Donald Trump declared in March that there should be some form of “punishment” for women who have abortions if the procedure is banned, abortion opponents quickly protested that their aim is never to penalize women.
“No pro-lifer would ever want to punish a woman who has chosen an abortion,” said Jeanne Mancini, President of the March for Life Education & Defense Fund in a statement just after Trump’s remarks. “This is against the very nature of what we are about.”
But is that really true? State legislatures and courts around the country have increasingly begun to criminally penalize women for abortions, threatening their right to make their own medical decisions from the moment they become pregnant. Trump has since reversed course on the issue, saying he would leave the question of punishment to the states. But in a growing number of states, the criminalization of abortion is well under way. And, as is often the case in the criminal justice system, the burden is falling disproportionately on women of color.
In Oklahoma last month, the state legislature passed a bill that would make it a crime to perform or induce an abortion. While the bill was vetoed by Governor Mary Fallin, a Republican, its intentions were clear: to impose criminal penalties on women attempting to exercise their right to choose in Oklahoma.
Also last month, a 33-year-old Indiana woman named Purvi Patel appeared before a state appeals court for a hearing that will decide her fate. Patel had been sentenced in March to 20 years in prison for fetal homicide. If the prosecution is successful, she would be the first woman convicted under a state feticide law for having an abortion. A final decision on her appeal is not expected for several months. The case is expected to make its way to the state Supreme Court.
Last year, in Georgia, a woman named Kenlissia Jones was arrested for allegedly using the abortion drug misoprostol to self-induce an abortion. Jones originally faced two charges: “malice murder” and “possession of a dangerous drug” (i.e. the misoprostol). The “malice murder” charge was dropped, but prosecutors went forward with the “dangerous drug” charge.
Finally, in Tennessee last year, another woman named Anna Yocca was charged with attempted murder for trying without success to self-induce an abortion with a coat hanger. Prosecutors later dropped the attempted murder charge, but said they would still pursue criminal charges against Yocca, most likely for aggravated assault.
These are just a handful of the many pending cases that criminalize women for a procedure that, in theory at least, was legalized by the Supreme Court’s Roe v. Wade ruling in 1973.
Such criminal prosecutions come on top of the aggressive steps states have taken to reduce abortion access. More than two dozen states have passed laws that impose strict medical requirements on abortion providers, such as building hospital-style facilities or obtaining hospital admitting privileges. Known as Targeted Regulation of Abortion Providers (TRAP) regulations, such laws have resulted in clinic shut-downs around the country, and broadly blocked abortion access.
Additionally, many states have tried to ban abortion at 20 weeks, or banned telemedicine and abortion pill access for women seeking to induce abortions at home. Such restrictions have imposed so many limits on abortion access that many women think the procedure is illegal when it is not.
“Women actually think abortion is illegal in their states, because they see these headlines of another anti-abortion law,” says Amanda Allen, senior state legislative counsel for the Center for Reproductive Rights.
While the Roe ruling upheld the constitutionality of abortion except in the third trimester, the legal picture is complicated.
“Women are persons under the law and have a right to have an abortion,” says Lynn Paltrow, executive director of the National Advocates for Pregnant Women, a women’s rights advocacy group. “However, Roe is being attacked in a long-running, 40- [to] 50-year strategy that treats the fetus as a wholly separate person.”
The tool abortion opponents are using is feticide laws. Ostensibly passed to protect pregnant women from such third party fetal threats as physical assault, attempted murder, and drunk driving, feticide laws are on the books in at least 38 states. Anti-abortion prosecutors now argue that if the law regards the fetus as a person in the context of physical assault or other threats, the same standard should apply to those women who attempt to induce their own abortions.
Founded in 2001, National Advocates for Pregnant Women (NAPW) was launched to defend the rights of pregnant and parenting women. NAPW focuses particularly on those who are “most vulnerable to state control and punishment because of their pregnancy and parenting status,” which tend to be lower income women, women of color, and drug using women, as its website states. Group organizers say they have noticed an alarming trend on state legislatures to penalize women once they become pregnant.
State feticide laws have been used to prosecute women for drinking alcohol while pregnant, for stillbirths, for attempted suicide, and yes, for inducing abortion. The abortion drugs mifeprex and misoprostol have been approved by the FDA and have a complication rate of lower than 1 percent, but some states have made it a crime for anyone but a licensed medical professional to administer or secure these medicines.
And as is the case in the criminal justice system writ large, those arrested for abortion violations tend to be disproportionately women of color. The national reproductive justice group, SisterSong, began to focus in more on the criminalization of women of color, both for abortion prosecutions and for other reasons, following the celebrated case of a Florida mother named Marissa Alexander. Alexander served jail time but was eventually released for firing a warning shot at her abusive partner.
“Women are trying to make the best decisions for themselves to live their best lives,” says Monica Simpson, SisterSong’s executive director. “They are fighting for self-determination.
The case of Patel, a woman of South Asian heritage, has struck a chord with the National Asian Pacific American Women’s Forum. “Our analysis is that politicians across the country are passing laws to restrict abortion that use stigmatizing language and racist rationale,” says Miriam Yeung, the group’s executive director.
In Patel’s, case even though she speaks perfect English as an Asian American woman with immigrant parents, Yeung noted the language in the law enforcement reports was critical of her speaking style.
“The report notes Patel spoke in a ‘flat affect,’” says Yeung. “What affect could she have had?” Yeung notes that racial bias can create misconceptions about the accent and tone used by Asian American immigrant women: “Every Asian immigrant woman knows the experience of being misconstrued and stereotyped.”
While effecting women of color disproportionately, the criminalization of abortion has impacted all women, regardless of ethnicity or race. In the fall of 2015, a 39-year-old white woman named Jennifer Whalen was sentenced to prison for providing her daughter abortion drugs. The nearest abortion clinic was 74 miles away, and Whalen didn’t have health insurance for her daughter. So Whalen obtained mifeprex and misoprostol for her daughter.
When Whalen’s daughter began bleeding excessively, Whalen took her daughter to a hospital. When Whalen reported that she had provided her daughter with abortion drugs, the hospital called child protective services. Despite having no criminal record besides an underage drinking charge, Whalen was charged with a felony for offering medical consultation about abortion without a medical license. She was also charged with three misdemeanors: endangering the welfare of a child, dispensing drugs without being a pharmacist, and assault.
Abortion opponents are reluctant to frame the new rash of regulations as criminalization, but it is clear that their objective is to make abortion illegal. When asked about criminalization, abortion opponents usually pivot to talking about their compassion for, and desire to, ensure the safety of women who go through these procedures.
Safety is the main justification for the TRAP regulations that have been imposed on abortion providers, and that have forced women to travel farther and farther distances to find clinics. According the American College of Obstetricians & Gynecologists, which has weighed in on the Supreme Court case challenging Texas abortion restrictions known as Whole Woman’s Health v. Hellerstedt, medical complications arising from the abortion procedure are extremely rare. The real purpose of TRAP regulations, critics say, is to target abortion clinics and close them down—a campaign that has been successful in many states around the country, particularly Texas. That has left women like Whalen, Patel, Jones, Yocca, and others, with few medical options.
When abortion is made increasingly inaccessible and is classified by the courts as murder, the practical effect is to turn back the clock to the days before Roe.
“If abortion is murder, then women are murderers,” Paltrow says. “When most folks are asked: ‘Do you want to see women incarcerated and behind bars,’ they say: No. They are not thinking that you are getting pulled into jail as a murderer.”
The upshot is that reproductive rights advocates, already struggling to beat back a growing list of abortion restrictions in the legislatures, are increasingly going to court, as well, to defend women against criminal charges for accessing their right to choose because of many of these restrictions put in place.
Last year, National Advocates for Pregnant Women filed an amicus brief in a case known as McCormack v. Herzog, which involved an Idaho woman named Jennie McCormack who had been arrested in her home for self-inducing an abortion. The brief argued that it is unconstitutional to prosecute women for having an abortion and therefore McCormack could not be held criminally liable. McCormack not only won dismissal of her criminal charges; her lawyer spearheaded a class action suit that successfully struck Idaho’s abortion law from the books.
The abortion rights movement isn't just about defending women's right to choose, says Paltrow; it’s about ensuring that women don't lose their civil and human rights upon being pregnant.