The number of women in prison has skyrocketed over the last 40 years. Despite critical state level criminal justice reforms designed to keep people out of prison, both sexes have not benefited equally. Women currently go to prison at twice the rate of men. And now, a new threat to the over-prosecution and incarceration of women looms large in the, perhaps, unexpected forum of reproductive rights.
This year alone, state legislators have introduced nearly 600 abortion restrictions, with more than 90 becoming law, according to Planned Parenthood. Some of these laws, like S.B. 8 in Texas, which empowers private citizens to sue someone who “aids or abets” a person seeking an abortion after six weeks of pregnancy, do not provide for criminal penalties. Still, their restrictive nature makes getting an abortion nearly impossible for most women and sets the stage for future criminalization on a broad basis.
Even in the absence of laws completely banning abortion, pregnant women have been targeted for arrest. The organization, If/When/How: Lawyering for Reproductive Justice, puts the number at least 21 for people across the U.S. who have been arrested for self-managing an abortion or helping someone who self-managed an abortion. Hundreds more have been arrested for experiencing miscarriages. Just last week, a judge in Oklahoma sentenced Brittney Poolaw to 4 years in prison for suffering a miscarriage after the 17-week fetus tested positive for methamphetamine.* In Alabama, a young Black woman was charged with manslaughter after losing her pregnancy when another woman shot her in the stomach (The charges were eventually dropped). In California, a woman was charged with murder and jailed for more than a year because her baby was stillborn, after prosecutors say she consumed methamphetamine.
In its current term, the U.S. Supreme Court will take up the issue of whether to strike down Mississippi’s 15-week abortion ban. That ruling could result in Roe v. Wade being significantly weakened or struck down entirely. If Roe v. Wade is overturned, 26 states are primed to ban abortion, according to Guttmacher Institute, a reproductive rights policy organization.
It is not mere hyperbole to suggest that Roe’s demise will thrust this country backwards in time. Not just to the days of back alley abortions, but back to a time when health-care professionals, fearing arrest and prosecution, served as the state’s investigators. And to a time when women are surveilled as their pregnancies progress and watched for their use of drugs or alcohol. A recent study released by the National Association of Criminal Defense Attorneys (NACDL) sounds an alarm bell about a wave of expansive prosecutions that will likely follow any significant curtailment or reversal of Roe.
Several states, including Arkansas, Kentucky, Mississippi, Alabama, and South Carolina have already expanded the definition of “personhood” to include an “unborn child.” Many other states are poised to follow suit should Roe be overturned, according to the NACDL’s report, Abortion in America: How Legislative Overreach is Turning Reporductive Rights Into Criminal Wrongs. This change will expand the scope of criminal liability for people who intentionally or unintentionally harm a fetus, as well as people who end or attempt to end their pregnancies. The loss of a pregnancy might result in charges of homicide, feticide or aggravated assault.
These so-called “personhood” laws, granting unborn children full legal rights, may also be used as the basis for severe charges against those accused of violating abortion bans. States could make use of existing statutes, including those covering conspiracy, attempt, and accomplice liability, to charge those tangentially associated with an abortion, including individuals who counsel a woman, fund, schedule, or otherwise assist in the process. Many states already have “heartbeat” bills on the books, outlawing abortion once a fetal heartbeat can be detected, often before a woman even knows she is pregnant.
For the most part, these so-called “heartbeat” bills have been enjoined and found unconstitutional under existing precedent. But that could also change if Roe is overturned. The NACDL predicts that if these bills are permitted to go into effect, they will open the floodgates to a new wave of arrests, prosecutions, and prison sentences in many states, casting a wide net and entangling a wide swath of individuals— many of whom might be only peripherally linked to the abortion itself.
To be sure, women are increasingly prosecuted for harm to their fetuses. A 2013 study conducted by National Advocates for Pregnant Women, a reproductive justice organization, found that between 1973 and 2005, 413 women were arrested for allegedly harming their fetuses. Between 2006 and 2020, three times that number faced criminal penalties.
The NACDL report goes on to detail current legal statutes that criminalize abortion and the impact that overturning Roe v. Wade would have on laws to prosecute and incarcerate those providing, receiving or assisting with abortions. Not surprisingly, the study concludes that the further over-regulation and criminalization of abortion will add to the already significant inequities that exist within the criminal legal system as they relate to Black, Hispanic, and economically disadvantaged communities. Although in the absence of legal abortion, women suffered great personal, medical and financial consequences, they were not historically, routinely prosecuted and imprisoned for having abortions. With the anticipated new wave of anti-abortion legislation, women are likely to be targeted for prosecution.
As NACDL President Martín Antonio Sabelli, notes, “This Report reveals that the ‘War on Abortion Rights’ not only undermines the Bill of Rights but also represents an attempt to legislate the will of a few on the lives of the many, especially the poor and the vulnerable, who will have no real choices, unlike the wealthy. We should learn from our mistakes and resist the overly broad use of criminal penalties to regulate disfavored personal choices that will open the door wide to a new wave of mass incarceration.”
In a post Roe protection world, women’s access to abortion will be limited to states where the right has been recognized as law, either by legislative fiat or state supreme court decree. Short of changing the composition of state governments to create pro-choice legislatures, creative ways to resist the laws that would put a woman or her supporters behind bars for ending an unwanted pregnancy will need to be implemented to protect those living in states without abortion rights and without the means or knowledge to travel to states with more liberal laws. Educating women about their choices and providing widely available and affordable access to family planning services is a good start. But for those women who find themselves in need of immediate help in obtaining a safe abortion, more concrete steps are necessary.
Linked networks of sympathetic supporters that have already cropped up in some areas will need to be expanded. Dubbed the “Overground Railroad,” a reference to the Underground Railroad that abolitionists used to secretly shuttle slaves out of the South, these networks help women with transportation, expenses, access, and a place to stay. There are also proactive measures that can be taken to neutralize the impact of the criminalization of abortion. States can authorize funds directly to women who cross state lines seeking sanctuary and can appropriate funds to reimburse organizations that provide counseling and assistance for these women.
Without the protections provided by Roe v. Wade, many states will, undoubtedly, continue to pass laws that have the potential to exacerbate the national crisis of overcriminalization and incarceration, with women being most affected. Laws that could subject those seeking abortions to extreme criminal penalties, including the death penalty, with women of color and those living in poverty at the greatest risk. At a moment in history when the benefits of safe and legal abortion are well-documented and a comfortable majority of the American population supports abortion, we are now faced with the incongruous reality of the expansion of laws that criminalize abortion and police the behavior of pregnant women.
Correction, Oct. 19, 2021: This piece originally misspelled Brittney Poolaw’s last name.