Jurisprudence

The Criminal Code Still Puts a Bull’s-Eye on Medication Abortion–Seekers’ Backs

A white bottle of Misoprostol tablets.
Misoprostol, one of the two drugs used in a medication abortion. Robyn Beck/Getty Images

More than six months after the Supreme Court did away with the constitutional right to abortion, the states are all going their own way on the issue.

In this week’s Slate Plus bonus segment of Amicus, Dahlia Lithwick and Mark Joseph Stern take a look at lawmakers’ recent attempts to define what is considered reasonable and bipartisan on abortion access, post-Roe, and the looming risk of patients, not just doctors, being prosecuted for medication abortion.

Dahlia Lithwick: I thought maybe we could do a little abortion update because it seems like the hits keep coming. I don’t even know quite where to start. Maybe if you want to, we can start at Virginia’s proposed 15-week abortion ban. You wrote about that this week for Slate.

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Mark Joseph Stern: Yeah, I mean, I’ve been trying to stay on the abortion beat because here we are in 2023, and Roe v. Wade is still overturned, and every state plus the federal government are still freed by the Supreme Court to do whatever they want on abortion. And everybody’s moving in different directions—some toward greater reproductive freedom, a lot toward less, and that is where we get to Virginia.

Virginia has a split government right now. The governor is Glenn Youngkin, a Republican. The house is controlled by Republicans, but the state Senate is controlled by Democrats. In fact, on Tuesday, a Democrat flipped another seat in the state Senate in a special election, so Democrats have a comfortable majority there now. And yet Republicans in the Virginia legislature have decided to prioritize a ban on abortion at 15 weeks of pregnancy. They introduced the bill the moment they could, on Jan. 11, as the session opened. Governor Glenn Youngkin has already strongly endorsed it.

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He calls it a bipartisan consensus. The Virginia legislators who support it call it practical, sensible, and reasonable. And I think that, if you actually pull out the text of the bill and read it, you will see that it is not any of those things. And it’s worth discussing why. Because this is the kind of legislation that we’re going to see pitched post-Roe as a compromise, as something that Democrats and Republicans can come together around to support. But it is not that.

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There are a few reasons why. The first and most obvious is that 15 weeks is far earlier than the deadline in Roe, where viability was the cutoff for abortion rights. That happens around 24 weeks. The big issue there is that it’s only at around 15 weeks of pregnancy that doctors can begin to detect fetal anomalies, particularly those involving fetal organs.

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The scans only start to show those anomalies between 15 and 22 weeks. And a lot of anomalies that are discovered during that period, they render the fetus incompatible with life. They ensure that the fetus will either die during childbirth or live a very, very short life of pain and anguish.

Even before Roe, it was very common for states to allow abortions under those circumstances to let parents make the decision that they didn’t want to force their child to live an incredibly short life of torment. But the Virginia abortion ban deprives patients of that choice. It includes no exceptions for fetal anomalies or abnormalities. It forces patients to continue with pregnancies, even if those pregnancies are doomed, even if the fetus has severe abnormalities that are incompatible with life. Even if those abnormalities threaten the health of the patient. The bill is clearly pandering to the anti-abortion movement, which opposes exceptions under these circumstances.

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And it only allows for abortions after 15 weeks when there has been rape, incest, or there is a threat to the life of the patient—not just the health, but the life of the patient. That forces doctors into the exact same position that they are in in so many other states—Texas, Oklahoma. We’ve seen this problem crop up in a lot of red states where an individual comes to the hospital with hemorrhage, with developing sepsis, who is pregnant, after 15, 16, 17 weeks, when these complications emerge. They are denied an abortion because the doctor says, “I cannot guarantee that this will kill you yet, and thus, if I perform an abortion, I could face years in prison.” And so Virginia Republicans are trying to sort of copy the playbook of red states like Texas and ensure that a criminal law, rather than medical standards, is guiding decisions when there is a serious maternal health problem.

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I think it’s just important to call that out and to continue focusing on it, because as the Overton window shifts, post-Roe, and as Republicans try to frame 15 weeks as a bipartisan consensus, we should remember who will actually be suffering from this, who will be dealing with the consequences and fallout. And, actually, it’s not the vast majority of individuals who get abortions, because almost all of them occur in the first trimester early on in pregnancy. It’s largely individuals who want to be pregnant, who want to have children, who discover a devastating problem after 15 weeks. And who would be told by the Virginia government, if this bill passed, “Sorry, you don’t have a choice here. You have to continue with this pregnancy.”

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I think that’s wrong, and I can only hope that Virginia voters agree and do not give Republicans control over the legislature next year and allow them to enact this into the law of the state.

Lithwick: Alabama’s Republican attorney general said this week that women in the state who use prescription abortion medication can still be prosecuted under the state’s chemical endangerment law, even though Alabama’s anti-abortion law was supposed to carve out the punishment of women as not going to be part of their abortion regime. Now they’re saying, “Oh yeah, what we meant was we don’t want to go after women, except for when we do,” and they’re using this unbelievably convoluted chemical endangerment law. But it’s of a piece with what you’re describing, which is that medical decisions now have to get filtered literally through the criminal justice system. And women, pregnant people are going to be the ones who pay the price.

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Stern: Absolutely. I think it’s so important to look at what Alabama’s top law enforcement officer is saying here, because it’s really obvious, and yet the anti-abortion movement has denied it all along the way. Yes, it is true that if you look at the abortion bans in isolation, they often say that women, mothers, patients cannot be prosecuted under those laws. So only the doctor is sent to prison when an illegal abortion is performed and prosecuted under those laws.

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But the problem is there are so many other statutes on the books that capture the conduct of people who—and this is so often the case in the 21st century—procure abortion pills over the internet, have them shipped to their home, and take them illegally, in violation of the laws of the state. Those crimes include chemical endangerment of the fetus, which a number of state courts have said does apply to an illegal medication abortion. It can be as simple as practicing medicine without a license. It can be all of these laws involving the shipment of illegal goods over state lines or into a state.

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There are a huge number of criminal statutes on the books in every state that can apply to those who illegally order and use medication abortion. So we have to stop pretending like women, patients, pregnant people will not be prosecuted just because they’re exempt from a handful of laws about abortion. The broader criminal code still puts a bullseye on their backs.

And in a way, this sounds maybe sort of grim, but I almost was glad to hear this guy admit that women could be prosecuted—because it’s this elephant in the room that anti-abortion folks are denying. And it’s about time that the people in power step up and acknowledge what they plan to do, because the laws are right there. Even before Roe, prosecutors sometimes charged women under these codes for using medication abortion illegally. It’s surely going to happen after Roe as well.

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Lithwick: This also puts the lie to Justice Kavanaugh’s concurrence in Dobbs, where he’s like, “Not to worry about crossing state lines!” Because it’s clear that this is going to be one of the big fronts, just putting abortion medication into the mail across state lines.

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So the notion that blue states have one regime, red states have another, I think we can really concede right here and now: already that’s clearly not the case. It’s going to be complicated, working it out. But I wonder if you want to talk for a minute about state Supreme Courts, because we’re also seeing that breaking down in interesting new ways.

Stern: Yeah. So we got the first two full state Supreme Court decisions on abortion in the wake of Roe v. Wade early in January, and they went two different ways. The South Carolina Supreme Court held that the state constitution protects a right to abortion, and the Idaho Supreme Court held that the state constitution does not protect a right to abortion—both 3–2 votes, very closely divided. The difference here, I think, primarily, is that the South Carolina Constitution has an explicit right to privacy guarantee, like about nine other states. And so the justices of the Supreme Court said, look, we have this provision that’s not in the federal Constitution that expressly ensures that every individual has a right to privacy that includes medical decisions, and those decisions include reproductive health care. The Idaho court went the other way. That court has been stacked with more hardcore conservatives.

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The South Carolina Supreme Court remains more moderate and mainstream. And the Idaho Supreme Court said, no, we’re not going to take this question away from the people of the states—they sort of channeled Brett Kavanaugh when he was overturning Roe. And these are not the last decisions we’ll get on state constitutions here. There is litigation in a number of other states right now asking the high courts to find or interpret a right to reproductive healthcare including abortion.

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And I think we’ll continue to see these kinds of split doubleheaders, where you have the more moderate and mainstream courts going one way, even if they are Republican-leaning, and the hardcore conservative courts going the other way. The issue, of course, is that it’s much easier for the political branches to interfere with state courts than federal courts. I wouldn’t be surprised if we saw Republican-controlled state legislatures and places like South Carolina working really hard to ensure that the next individual placed on this court will be the one to overturn this decision and allow the state to criminalize abortion once again. This isn’t going to be an ongoing battle, and these wins will not stay won by themselves.

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Lithwick: Mark, I wonder if maybe we can wrap up back where you started, which is these attempts to make that which would’ve been unthinkable, pre-Dobbs, sound mainstream. And that brings us to the House Republicans. They could barely get it together to elect a speaker, but sure were quick to push their “Born Alive” abortion bill, which, again, is put forward as some moderate mainstream, ordinary thing.

Stern: This is perennial legislation among Republicans, because they think that it’s a good political message to their supporters, and they think that it will appease the anti-abortion movement, which is a pretty demanding coalition partner for the modern Republican Party. And so one of the very first votes that House Republicans teed up when they finally elected a speaker was this so-called “Born Alive” bill that allegedly would require that infants who survive an abortion attempt will be given health care and will be given all necessary procedures to try to save their lives.

In reality, what the bill does is try to open up abortion providers to more criminal liability under federal law. The procedures that could theoretically cause an abortion to produce a live infant have not been used since the 1970s. It’s just not really done anymore. A lot of the acts that Republicans claim they’re trying to stop are already illegal. What they’re really trying to do is pass some very vague and broad criminal laws that would open up abortion providers to potential liability and potentially chill their practice by making them afraid to perform abortions. Especially the abortions that are later in pregnancy that we were discussing earlier, after the 15-week mark, when those fetal anomalies and conditions that are incompatible with life start to arise.

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