Roe v. Wade is in trouble. The 1973 Supreme Court decision protecting a woman’s constitutional right to terminate her pregnancy is under attack from every branch of the federal government and a majority of the states. Most members of Congress want to see it overruled, as do most governors and state legislatures. The president and vice president of the United States believe individual states should be able to prohibit abortion. In the federal judiciary, lower court judges have attacked Roe both obliquely and explicitly. Donald Trump’s judicial appointees were selected in part because of their opposition to Roe. And if Brett Kavanaugh replaces Justice Anthony Kennedy on the Supreme Court, the constitutional right to abortion access is almost certainly doomed.
Progressives are right to speak of Roe’s demise in apocalyptic tones. A reversal of the ruling would lead to the recriminalization of abortion in large swaths of the country. Four states have “trigger laws” that would automatically outlaw abortion in a post-Roe world. Ten have retained pre-Roe abortion bans that could take effect once again. Another eight have statutes that compel their legislatures to restrict abortion as stringently as possible if Roe goes. At least a few more conservative states that have already curtailed abortion rights, particularly those with unified Republican control, would likely forbid the procedure as well. And Congress could, if it wanted, outlaw abortion nationwide in one fell swoop.
In the days and weeks following the fall of Roe, countless medical facilities would be shuttered, leaving millions of women with no meaningful access to clinic-based care. It’s also quite probable that women who procured abortions in states that outlawed the procedure would be risking criminal prosecution.
This is a truth that pro-life advocates like to obscure. But if abortion is, indeed, murder, as so many of its opponents assert, then a woman who obtains an abortion should be guilty of homicide or manslaughter. Some anti-abortion advocates do take this position. Kevin D. Williamson, the National Review writer who was hired and then let go from the Atlantic, explained in 2014 that he was “absolutely willing to see abortion treated like regular homicide under the criminal code.” And in March 2016, when MSNBC’s Chris Matthews asked then-presidential candidate Donald Trump about what should happen to women who get abortions, Trump said, there “has to be some form of punishment.”
Immediately after Trump’s remarks, Jeanne Mancini, president of the March for Life Education and Defense Fund, declared in a statement, “No pro-lifer would ever want to punish a woman who has chosen abortion.” The Trump campaign, recognizing that the candidate’s statement had been impolitic, issued a statement retracting it. “The woman,” it said, “is a victim in this case, as is the life in her womb.” (One poll found that 39 percent of Trump voters disagreed with this position, asserting that women who get abortions should be punished.)
The notion that women who get abortions are actually victims, and thus shouldn’t be prosecuted for their crimes, is a common one in pro-life circles. But this victimhood model is dubious for two reasons. First, most women do not actually regret their abortions. Second, it requires abortion to be seen as something that is done to a woman and thus something she is not responsible for perpetrating or choosing.
For instance, National Review’s David French wrote in April that “If abortion is ever criminalized in this nation, I think only the abortionist (and not the mother) should face murder charges for poisoning, crushing, or dismembering a living child.” But French’s position rests on an outdated notion of how abortions are carried out in America. The medical reality is that abortion is increasingly something a woman can do to herself. As Irin Carmon explained in a chilling, thorough Washington Post article last year, it would be impossible to enforce a ban on abortion without prosecuting a huge number of women. That means there is no way to oppose abortion in 2018 without supporting the punishment of women who terminate their pregnancies.
In the pre-Roe era, an illegal abortion was often a dangerous “back-alley” operation, one conducted in unsanitary conditions at great risk to the woman undergoing the procedure. Large public hospitals had “septic abortion wards” to treat women who got potentially deadly infections following botched abortions. Some women tried to self-terminate by penetrating themselves with knitting needles or coat hangers; others swallowed turpentine and bleach. In 1965, illegal abortion accounted for 17 percent of all deaths stemming from pregnancy and childbirth. Today, in the U.S. that number is about zero percent.
While the landscape has changed dramatically in the past 45 years, there are still sizable chunks of the country where Roe is effectively dead letter. Kentucky, Mississippi, Missouri, North Dakota, South Dakota, West Virginia, and Wyoming each have only one abortion clinic. All of those states, as well as many others, impose strict burdens, like waiting periods and counseling requirements, that make the procedure difficult to obtain. As of 2017, 58 percent of women of reproductive age lived in states that severely restricted access to abortion.
In South Dakota, for example, a woman who seeks an abortion must be warned that pre-viable fetuses can feel pain (they can’t) and that the procedure has negative long-term psychological consequences (it doesn’t). She must then wait 72 hours, excluding weekends and holidays, before terminating her pregnancy. If she is younger than 18, she must notify her parents, or ask permission from a judge.
For many women, these state-erected barriers are too high to scale. But those who are thwarted from terminating their pregnancies via clinic-based care often don’t give up—and they no longer have to turn to back-alley abortion clinics. Instead, they can go to the internet, where it is easy and cheap to obtain the abortion-inducing drug misoprostol on the black market.
Buying misoprostol without a prescription is illegal in every state. That hasn’t stopped women from going online to purchase it. Once acquired, misoprostol can reliably terminate a pregnancy in the first trimester—without a single visit to a medical provider. (Misoprostol remains effective in the second trimester, but the woman may need extra doses, and she’s more likely to experience complications that require medical attention.)
In a clinical setting, misoprostol is administered as the second pill in a medical abortion. The first pill, mifepristone, halts the pregnancy and loosens the lining of the uterus. Misoprostol, usually taken a day later, softens the cervix and causes uterine extractions to expel the pregnancy. While mifepristone potentiates misoprostol, the latter is a highly effective abortifacient by itself.
In countries that ban abortion—and in U.S. states that severely limit it—women frequently turn to black-market misoprostol to terminate their pregnancies. American distributors of both mifepristone and misoprostol are obligated to comply with strict Food and Drug Administration rules. Mifepristone is so carefully regulated that health care professionals must receive special certification before they can dispense it. A compulsory label warns patients that the drug may only be legally prescribed through this “restricted program.” Misoprostol is not regulated quite as rigorously in the U.S. and, unlike mifepristone, is available in generic form. When prescribed for ulcers, it must include extensive warnings about the dire risk it poses to pregnant women when used off-label without a doctor’s counsel.
But internationally, the production and sale of both drugs are substantially more lax—and American women who take the drugs illegally often buy a generic version on the internet that was originally retailed in another country. Some countries have followed America’s lead in cracking down on its distribution. Sales of the drug appear to have spiked in Brazil in the 1980s after women noticed a warning on the label cautioning them not to take it while pregnant. Abortion is illegal in the country, with limited exceptions, and women have been prosecuted for ending their pregnancies, subject to a prison term of three years. But while the Brazilian government eventually tightened regulations on misoprostol, women in the country still manage to obtain the drug illicitly.
The same is true in the U.S. According to studies conducted at the University of Texas, between 100,000 and 240,000 women in the state between the ages of 18 and 49 have tried to end their pregnancies on their own, with misoprostol ingestion as the most common method of self-termination. Clinic-based abortion care remains difficult to access in much of Texas, even after the Supreme Court invalidated the state’s most draconian regulations in 2016. Lower-income women may not be able to drive for hundreds of miles to see a licensed abortion provider, but they can cross the border and buy misoprostol without a prescription for $50 in Mexico.
Women who live farther from the border can purchase the drug online with minimal hassle. Pro-choice activists will also ship the drugs to women who can’t acquire them.
Mifepristone-misoprostol combinations—that is, the cocktail used in a complete medical abortion performed in a clinic—are also available online, though they’re often more expensive than misoprostol alone.
For a study published in the journal Contraception in April, researchers purchased these drugs from a variety of websites, then tested them to see whether they were what they claimed to be. For the most part, they were. Mifepristone tablets contained within 8 percent of the labeled amount of the drug; misoprostol tablets contained a bit less of the drug than advertised but still enough to be effective. Moreover, the products, on average, shipped quickly and cost less than clinic-based care.
Are DIY abortions—performed at home, using drugs bought online, with no medical professional on hand—safe for women? Mifepristone-misoprostol is about 98 percent effective when used in the first 10 weeks of pregnancy; misoprostol is about 85 percent effective in the first 10 weeks when used by itself. Neither drug is particularly dangerous, and if the first dose doesn’t work, women can safely take another one a few days later. Professional medical supervision may be ideal, but in most cases, it isn’t necessary. Daniel Grossman, an OB-GYN and professor of reproductive health at University of California, San Francisco, told me that with “access to accurate information and high quality drugs, women can safely do this on their own.”
In fact, hundreds of thousands if not millions of women in the U.S. have already undergone this process by themselves. Most of them successfully terminated their pregnancies. The few who experienced severe complications were typically too far along in their pregnancies to safely undergo a medical abortion; after the first trimester, surgery becomes necessary.
Grossman told me that most women who self-terminate do so because of “financial barriers and barriers to accessing care.” But he added that “there’s a bucket of other reasons,” including “a preference for self-care,” fear of the stigma associated with getting an abortion, and a desire for a “less invasive process than going to a clinic.” Undocumented women may also have a deep fear of the medical establishment. In addition, sales of mifepristone in Mexican border towns appear to have surged when Texas enacted the anti-abortion laws the Supreme Court eventually struck down. And abortion pills have cropped up at flea markets in Texas, suggesting that some enterprising individuals are buying the drug in Mexico and then reselling it for profit across the border. If Roe falls, the question will not be whether women in anti-abortion states self-terminate. The question will be what legislators, police, and prosecutors decide to do about it.
It’s possible to cobble together a vision of the post-Roe future by looking at events from the recent past. In 2013, Indiana prosecutors charged Purvi Patel with feticide after she allegedly took misoprostol and mifepristone that she had purchased online. (Patel reportedly believed she was two months pregnant at the time she self-terminated, while pathologists believed she was 26 weeks pregnant. Patel also denied taking the misoprostol and mifepristone, but prosecutors presented evidence that she’d ordered them from China.) A jury convicted Patel, and she was sentenced to 20 years in prison. An appeals court eventually overturned the conviction, finding that Indiana’s feticide law wasn’t intended to punish women who self-terminate. Patel spent a total of 525 days in prison.
In 2015, Georgia prosecutors subjected Kenlissia Jones to similar treatment. Jones terminated her pregnancy using abortion pills she bought online, but she was five months pregnant—too far along for a safe, unsupervised medical abortion—and went to the hospital due to complications. A county social worker called the police to report Jones. When law enforcement officials determined Jones had taken black-market misoprostol, they kept her in jail for three days. Prosecutors later charged her with malice murder, punishable by death or life imprisonment. The county district attorney reluctantly dropped that charge after concluding it did not encompass Jones’ DIY abortion but threatened to charge her with possession of a dangerous drug. (He never did.)
Jennie Linn McCormack underwent a comparably harrowing experience in 2011. McCormack, a single mother of three living in Idaho, self-terminated using abortion pills she bought online; she didn’t have the time or money to comply with the law requiring she pay two visits to an abortion clinic, as the nearest facility was more than 100 miles away. McCormack told a friend about her self-induced abortion. That friend told her sister, who reported the abortion to law enforcement, and the police arrested McCormack at her home. While Idaho law expressly criminalizes self-termination with a prison sentence of up to five years, McCormack fought the charges, and in 2015 a federal appeals court struck down the law under Roe.
While prosecutions like these aren’t common, they certainly aren’t unheard of. Jill Adams, an attorney and pro-choice activist who launched the SIA Legal Team in 2015 in response to a series of high-profile prosecutions of women who illegally self-induced abortions, told me that at least 20 people have been arrested in connection with self-induced abortions since Roe, most within the past 15 years. Self-termination is expressly illegal in Arizona, Delaware, Idaho, Nevada, New York, Oklahoma, and South Carolina. Ten states have laws on the books that criminalize harm to a fetus and could be read to encompass self-termination. Fifteen states maintain criminal abortion laws that can be applied to women who self-induce. In other states, prosecutors have found creative ways to charge these women, under criminal statutes as broad as murder and as obscure as improper disposal of human remains.
Pro-choice advocates caution that criminal penalties like these are just one way the government can punish women for having abortions. Arguably, some such punishments are already in place. In 1992’s Planned Parenthood v. Casey, the Supreme Court diminished constitutional protections for abortion access, holding that the government could restrict the procedure so long as it did not place an “undue burden” on the woman. (Under Roe, abortion restrictions had been subject to much more stringent scrutiny.) Casey’s hazy standard allowed states to make women undergo unscientific anti-abortion “counseling” and medically unnecessary ultrasounds—surely a penalty for women, if less retributive than jail time.
Anti-abortion groups have also devised schemes to punish those who help women terminate their pregnancies. Donna Crane, the former director of government relations at NARAL Pro-Choice America, noted that congressional Republicans have introduced a bill that would criminalize the transportation of a minor across state lines without her parents’ consent to obtain a legal abortion.* Any individual who does so may be imprisoned for a year. (The bill was sponsored by Rep. Ileana Ros-Lehtinen, who is considered one of the most moderate Republicans in the House of Representatives.) Texas has already passed a law that prohibits anyone from helping a woman obtain a second-trimester abortion—by, for instance, driving her to a clinic. And in 2014, a jury convicted Jennifer Whelan for purchasing abortion pills online for her 16-year-old daughter, who wished to terminate her unplanned pregnancy. A judge sentenced Whelan to prison.
Crane told me these tactics echo those used by prosecutors in the pre-Roe era. While few women were imprisoned for getting abortions in those days, prosecutors would often “snag the woman and force her to say everybody who was involved with the process,” Crane said. “They put these women in impossible situations and aggressively flip them.” Prosecutors could pursue a similar strategy if Roe were overturned. They might not charge a woman who self-terminated, but they could threaten her with dire consequences unless she named everyone who helped her—a friend who directed her toward black-market misoprostol, or a parent who helped her as she miscarried.
Talcott Camp, deputy director of the American Civil Liberties Union’s Reproductive Freedom Project, agreed. “People who assist in the commission of a crime are generally criminally liable,” she told me. “You can’t drive somebody to the appointed spot for some criminal activity and not be liable.” In a post-Roe world, the family and friends of women who self-terminate would face investigation and criminal charges. States could also enshrine the victimhood model into law, passing legislation that bars the prosecution of women for self-termination but allows the prosecution of those who don’t assist the police in identifying those who helped her procure the procedure. “The idea that that’s not punishing women,” Camp said, “is ludicrous.”
As the cases of Patel, Jones, McCormack, and others illustrate, prosecutors could bring any number of charges against women who self-terminate. Even if lawmakers decided not to further criminalize DIY abortions, prosecutors could charge women for murder, infanticide, or lesser crimes like the unauthorized practice of medicine. We might not see prosecutions skyrocket if Roe falls—but we would, without a doubt, see an uptick in the number of arrests of women who self-induce. Prosecutions would become commonplace if not ubiquitous, a recurring reminder of the fate that befalls women who attempt to end their pregnancies illegally. Priscilla Smith, a clinical lecturer at Yale Law School, told Irin Carmon, “No matter what the national anti-abortion movement says, it’s not up to them—it’s up to local prosecutors who are trying to make a name for themselves … [and] the movement sets the tone by calling it murder.”
Does the anti-abortion movement remain vociferously opposed to “punishment” for women who self-terminate? For this article, I hoped to speak to a major pro-life organization to hear its views on the criminalization of self-induced abortions. I reached out to the American Life League, March for Life, the Susan B. Anthony List, Americans United for Life, National Right to Life, the American Family Association, Concerned Women for America, and the Family Research Council. A spokeswoman for March for Life told me the organization was “unavailable to comment at this time.” No other group responded to my requests for comment.
I was able to speak with Charles C. Camosy, a professor of ethics and theology at Fordham University and a board member of Democrats for Life of America, a group that believes the Democratic Party should accommodate pro-life positions and candidates. In his book Beyond the Abortion Wars, Camosy distinguishes between medical and surgical abortions. “A surgical abortion is a direct attack on a prenatal child with a sharp object,” Camosy told me. “A medical abortion is a refusal to aid a prenatal child. It’s kicking the child out early. That could still be wrong and problematic, but it’s a different moral situation. A refusal to aid somebody is not the same as aiding death.”
Camosy compared medical abortions to parental negligence and surgical abortions to murder. He pointed out that the law already makes a distinction between parents who allow their children to die due to neglect and parents who “murder their child.” But he also told me that “the woman should not be on the hook for any of this.”
“America has too patriarchal a culture,” Camosy said. “There are too many examples of explicit and structural coercion to criminalize the woman for anything in any of these contexts. If there are any criminal penalties, they should fall on health care providers who willfully flout the law.”
There is no way for the government to prevent women from getting abortions. States could try to outlaw mifepristone and misoprostol or crack down on the drugs’ illicit sale. But so long as those medications remained available in pro-choice states, women could travel across state lines to buy them. Even if Congress itself took dramatic action—say, banning abortion, as well as the sale and manufacturing of abortifacients—the drugs are too widely available around the world to keep them out of the U.S. Misoprostol, in particular, has flooded the international market for decades. Plenty of countries will continue to produce and sell the drug, for abortion and other purposes. American women who want it will always be able to get it.
But women who self-terminate may face even more danger than they did before 1973. If Roe falls, state prosecutors, most of whom are elected, will face pressure to go after anyone who facilitates abortions. Prosecutors have sweeping authority to investigate and intimidate women who might procure, share, or use misoprostol. They have already targeted women hospitalized for illegally induced miscarriages.
On the federal level, we’ve recently seen a preview of the post-Roe future, as the Trump administration has displayed an appetite for punishing women who seek abortions. In March 2017, Trump’s Office of Refugee Resettlement took the position that undocumented minors in federal custody would not be allowed to terminate their pregnancies. Even in cases of rape, a functionary who implemented the policy explained, these minors must carry their unwanted pregnancies to term, because doing so is in their “best interest.”
As soon as the ACLU discovered this rule, it sued on behalf of a minor known as Jane Doe who was denied abortion access. It won, and a court ordered the administration to step aside. With the ACLU’s help, Doe obtained her abortion. Yet the administration asked the Supreme Court to sanction Doe’s lawyers, an effort to retaliate and intimidate these attorneys for facilitating the termination of a pregnancy. (The court declined to impose sanctions.)
If the Trump administration is eager to go after lawyers who helped a woman get a legal abortion, it will surely be willing to target those who help women get illegal abortions. And while Trump may profess no desire to punish the women themselves, that’s not his decision to make. The president has already stacked the federal judiciary with anti-abortion ideologues, and his replacement of Kennedy with Kavanaugh will clear the way for ultra-restrictive abortion laws and even the outright reversal of Roe. In his current position on the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh sat on the three-judge panel that first heard Jane Doe’s appeal. He ruled that the Trump administration could continue to delay Doe’s abortion, even though the holdup could make the procedure more dangerous. And, when overruled by the full court, he penned a cutting dissent that accused his colleagues of underestimating the government’s interest in “fetal life.”
Kavanaugh has, in other words, telegraphed his opposition to Roe. Presuming he is confirmed—and he very likely will be—the Supreme Court will weaken Roe to the point that states can restrict or even outlaw abortion in any manner they wish. Once states can regulate abortion without clear constitutional limits, prosecutors will be unleashed to target whomever they want.
“Before Roe, there was no organized, synchronized, digitized anti-choice movement,” Donna Crane, the former NARAL official, told me. “There was no system for finding these cases, bringing them to prosecutors, and putting political pressure on district attorneys to prosecute. We have all that now, and I would expect prosecutions to multiply if Roe fell.”
I asked Crane whether she was heartened by the widespread rejection of Trump’s improvised assertion that “there has to be some form of punishment” for women who abort. She told me she was not. “The anti-choice side was horrified, because they engage in the convenient political fiction that any woman who wants an abortion has been duped by society and culture,” Crane said. “But that’s an untenable position. Trump didn’t misspeak. He stumbled into the truth.”
Correction, July 31, 2018: This piece originally misidentified Donna Crane as the director of government relations at NARAL Pro-Choice America. She is NARAL’s former director of government relations.