When Abortion is a Crime, part 1

Anti-abortion leaders are laying the groundwork to put women, pharmacists, and doctors in jail.

A pregnant woman is drawn on a wall outside the bedroom of “Alma,” a 22-year-old living near Tegucigalpa, Honduras. Abortion is a criminal offense in Honduras, and a stillbirth or miscarriage can land you on the wrong side of the law. Alma has been charged with ending her pregnancy; she says she didn’t know she was pregnant before she had a stillbirth. Bottom left: Alma in her bedroom. Bottom right: “Dios es Amor,” or “God is Love,” is written on a pole at her home. | originally published in POLITICO Magazine / Nichole Sobecki/VII

Well that didn’t take long.

Abortion rights advocates have long stated the obvious: That if abortion is criminalized, women will go to jail. How do we know? Well, we know because women go to jail for abortion in countries all over the world where abortion is criminalized. We know because women go to jail in the US for doing things while pregnant that prosectors say harmed their fetuses. We know because the anti-abortion movement has spent decades saying that abortion is murder, that abortion is a Holocaust, that abortion is “Black genocide” — and by extension that women who have abortions are murderers, Nazis, and genocidaires. It takes a pretty giant intellectual leap to deem something is murder — or perhaps even worse than murder — and then say but actually, the person doing that very act won’t be prosecuted because, well, reasons (the only real reason is that it would be unpopular).

That is, however, what anti-abortion activists have largely said. They’ve claimed that women who end pregnancies are victims, innocent if ignorant little simpletons who know not what they do and are manipulated into forgoing every woman’s dream — motherhood, and as many children as God gives you — by scheming abortionists and devious feminists, who convince women that they might want other, shallower things, like a “career” or a “college degree” or “the ability to provide for my existing kids” or “sobriety” or “a home” or “a partner I want to stay tied to” or “a pregnancy that didn’t come from rape.”

But this particular misogynist condescension — women, they just don’t know better! — is complicated by both reality and the fact that more than half of abortions in the US now happen with pills. Outlawing abortion in conservative states means that women in those states who do have abortions have worked pretty hard to get them, and have often ordered pills online and taken them all by themselves, no “abortionist” necessary. Who, then, is to blame?

Well, as Jessica Valenti wrote earlier this month, some right-wing law enforcement officials are predictably setting their sights on women. The Alabama Attorney General said he would prosecute women who terminated pregnancies, but, after media coverage of his own words, denied he would do any such thing. So, ok, maybe it’s a little too soon.

But it’s not always going to be too soon to take this inevitable step. And prosecuting women is inevitable.

For years, the leaders of the anti-abortion movement have tried to quiet talk of jailing women, because they know most normal people recoil in horror at the suggestion. And yet the suggestion keeps popping up, from some of the most aggressive anti-abortion activists to America’s “most pro-life president,” Donald Trump.

Take the comments of the Alabama Attorney General.

“The Human Life Protection Act targets abortion providers, exempting women ‘upon whom an abortion is performed or attempted to be performed’ from liability under the law,” Marshall wrote in an email to AI.com. “It does not provide an across-the-board exemption from all criminal laws, including the chemical-endangerment law — which the Alabama Supreme Court has affirmed and reaffirmed protects unborn children.”

What this means is that prosecutors could charge women who take abortion pills not under the state’s abortion ban, but under a law initially written to protect children from meth lab fumes. Similar laws, including those that protect children from drugs and those that criminalize drug trafficking, have already been used to prosecute women who use drugs while pregnant. And Alabama is ground zero for these prosecutions: A single county in the state has charged more than 150 women for using drugs while pregnant, under the cover of fetal protection. All of these prosecutions have used the state’s chemical endangerment law to prosecute women for endangering their fetuses with illegal drugs.

That’s the same law the Alabama attorney general said could be used to prosecute women who take abortion pills. And really.. why not? If the state is already prosecuting women for endangering their fetuses by taking opioids or smoking weed, it’s hard to see what legal argument would prevent them prosecuting women for taking drugs that are illegal in the state and are intended to remove those embryos or fetuses from their bodies.

The only thing preventing these prosecutions is the threat of public backlash. And that’s an awfully thin wall.

It’s also one that the anti-abortion movement is eroding day by day.

Last year, the Louisiana legislature considered a bill that would have charged women for murder for abortion; again, it was too soon to trot out a law that extreme, and another legislator proposed a revamp that would take out the language leading to prosecutions of women. But more than a quarter of Louisiana House members who voted on the question voted against revamping it — in other words, they voted to keep the potential murder charges in place. “This is a thorny political question, but we all know that it is actually very simple. Abortion is murder,” Republican Rep. Danny McCormick told the chamber. And McCormick does have one point: If fertilized eggs, embryos, and fetuses are given personhood status and equal protection under the law, then it’s pretty hard to come up with any rational reason why women who have abortions shouldn’t be charged as murderers.

In April, a Texas woman was thrown in jail for an alleged self-induced abortion. The charges were eventually dropped, but the case gives us some sense of where conservative prosectors’ heads are at.

In 2021, a Texas legislator put forward a bill that would make abortion a crime punishable by death.

In Honduras, a largely Catholic and staunchly “pro-life” nation, abortion is criminalized and emergency contraception is banned. In my reporting there, I met a woman who said she lost a pregnancy but was nonetheless facing prison time for what prosecutors claimed was an illegal abortion; her photo and a link to my story about Honduras’s abortion and emergency contraception ban is at the top of this post.

In El Salvador, which has the kind of total abortion ban the US anti-abortion movement is gunning for, dozens of women have been sent to prison for alleged abortions (many of the women say these were miscarriages). This is a place where the “pro-life” movement has significant political power; it’s a place where the Catholic Church has significant political sway. And in that context, the pro-life movement puts women in jail. The Catholic Church does not object. The global anti-abortion movement, which is quick to (rightly) condemn things like China’s former one-child policy, says absolutely nothing about women jailed for abortion around the world.

The “progressive” Pope says nothing about all of the women, many of them Catholics, imprisoned for abortion across the globe. Instead, he asks: “Is it right to hire a hit man to solve a problem?”

Hiring a hit man to kill someone is, last I checked, pretty much universally illegal, a crime treated as murder or close to it.

It’s telling. Pro-choice feminists have also been quick to speak out against China’s one-child policy and other unconscionable encroachments on reproductive rights, including forced or coerced sterilizations, abortions, and contraception. And it’s certainly not feminist groups who are carrying these policies out, nor are these policies being carried out in the name of feminism. It is “pro-life” groups that have advocated for criminal penalties for abortion, and it is in the name of the “pro-life” movement that women are being imprisoned.

So the silence from the pro-life movement should tell you something about what they actually believe versus what they think is politically convenient.

Abortion is currently a crime in more than a dozen US states. It is already the case that abortion bans in many states will throw people in jail for abortions, it’s just that the people those bans would jail are doctors, nurses, and anyone helping a person in need — they might not throw a woman in jail, but they absolutely tell her: “We will imprison your best friend, your mom, your boyfriend, your husband, your auntie, your sister if they help you.” And as far as I know we haven’t seen any of these cases go to trial yet, but I wonder: Can they compel a woman who had an abortion to testify against a loved one? Can they haul her into court, put her in front of jurors and a hostile audience, and force her to recount one of the more difficult moments of her life, all in a spectacle of public misogynist humiliation? Can she go to jail if she refuses?

The idea that people who have abortions are safe from criminal penalties under these laws is a joke.

It’s also striking that the anti-abortion movement just passed a host of laws that would throw doctors in jail and the general public is just like, sure, that seems fine. And here’s the thing to understand about the exceptions to many of the laws that now make abortion a crime: Abortion is simply presumed to be criminal under any circumstances, even to save the life of the pregnant woman.

You may have heard that every US state has an exception for the pregnant woman’s life, but that’s not quite true. What many states have instead is the option for an affirmative defense arguing that the abortion was necessary to save a pregnant woman’s life. What this means is that prosecutors can file charges against health workers for any abortion, including a life-saving one, and it’s up to the doctor — not the prosecution — to prove that the abortion was not just medically necessary, but the only option to save the pregnant person. If you’ve ever wanted an American crime procedural like Law & Order, you probably understand that this is not usually how it works; usually, the prosecution has to prove each element of their case beyond a reasonable doubt in order to get a conviction. In states where “abortion to save a pregnant woman’s life” is an affirmative defense, though, the prosecution does not have to prove anything about the abortion’s necessity or lack thereof beyond a reasonable doubt. The burden of proof is turned the other way.

This matters because medicine is not math; doctors have to make split-second decisions and use their best judgment. It is often the case that the only time a doctor knows with 100% certainty that a pregnancy complication is going to kill a patient is when that patient dies. Infections like sepsis can move quickly; every patient’s body is different, and if doctors dither, things can take a turn for the worst. But the existing anti-abortion laws force doctors to dither — in an effort to not be thrown in jail, doctors are now consulting with administrators and lawyers before they so much as treat women for miscarriages, let alone perform life-saving abortions. And if a doctor does decide to move forward with a life-saving abortion, they still run the risk that a prosecutor and a jury simply won’t agree with them that the abortion was a life-saving one. Have no doubt that prosecutors will nitpick — “couldn’t you have tried X instead? What about this other case where Y happened?” — and that some number of people, particularly in hard-right states, are going to walk into that jury box believing that abortion is murder and a good mother would die for her child.

And even standard exceptions to abortion bans are pretty meaningless if there’s no one in the state with the skill set to perform abortions.

This is the reality of our current criminalization landscape: Doctors and other health workers who treat pregnant women are at direct risk of arrest and imprisonment if a prosecutor and a jury simply don’t agree with their assessment that an abortion was necessary; even women who qualify under existing exceptions have to travel out of state. And importantly: The anti-abortion movement says that abortions are never necessary, even to save a pregnant person’s life. This is flatly false, but these are not people known for their honesty or medical literacy. So where do you think this is going?

But even these existing extreme laws are not going to be enough to appease pro-lifers. The anti-abortion movement generally understands that the nation is still reeling from the overturning of Roe. Yes, they are deranged enough to think that the Republican Party’s problem is that it hasn’t gone hard enough on abortion rights, but they know there are two big red lines: Preserving the life of the pregnant woman, and not putting women behind bars for ending pregnancies.

These are red lines they are eager to cross. But they understand this is tricky territory, and must be approached strategically. If you want to radically change public opinion, you have to get people accustomed to slightly less-extreme versions of your eventual goal. That’s why you already see the anti-abortion movement arguing that there is simply no such thing as a life-saving abortion; they’re planting a seed of doubt. And it’s why you see some slow testing-of-the-waters on the question of whether or not to jail women. The strategy is pretty obvious one: Start with women who are unsympathetic — drug users, poor Black mothers — and warm the public up to the idea that some women, women who are bad women, should indeed be put in jail for harming their fetuses. Then expand out. And what is a more direct fetal harm than abortion?

This expansion is already happening courtesy of “fetal personhood” laws, which claim to give fertilized eggs, embryos and fetuses equal rights as any born person, but in practice give them far more expansive rights than pregnant women. If an embryo is the legal equivalent of a six-month-old, how would it be possible to not punish women for abortion, the same way we would punish a mother for killing her child?

But that’s not all. According to new reporting from Vice, efforts to criminalize women are already underway in some conservative states. In Oklahoma, the current abortion ban says that prosecutors cannot charge “a woman with any criminal offense in the death of her own unborn child;” but one legislator has put forward an amended abortion ban stripping that language out. An Arkansas bill states that “all unborn children should be protected under the state homicide laws.”

Some of these legislators are leaning on the language of “abolition,” a nod to the wing of the anti-abortion movement that unabashedly wants to classify abortion as murder, and accordingly jail (or execute) women accordingly.

The plan is this: Start with doctors, then come for pharmacists, then women themselves. Start with abortion, then come for contraception, maybe IVF.

This is coming. The laws are being drafted now. The talking points are being strategically deployed. And the second part of this story — of how the anti-abortion movement is, right now, laying the groundwork to criminalize IUDS, birth control pills, and possibly even fertility treatments — is coming tomorrow for paid subscribers.

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xx Jill