What’s the Answer to Abortion in the Age of the Prison-Industrial Complex? Lock Women Up and Throw Away the Key

Women were once seen as "second victims" of abortion. Now, as women face murder trials for unintended pregnancy losses, they're potential fodder for a prison system that is steadily becoming one of the biggest businesses in the country.

A mini-documentary on YouTube from 2007 has recently gotten a new lease on life. The filmmaker asks protesters outside of a women’s health clinic in Libertyville, Illinois whether they think abortion should be illegal. They do. What should the penalties be, he asks? What happens next is fascinating: they fumble.

Anna Quindlen, writing for Newsweek in 2007, noted that “the doctrinaire suddenly turn squirrelly at the prospect of throwing women in jail.” Some say they would just pray for the woman. Some grasp at quasi-legal reasoning, saying the woman should be punished based on her level of awareness that she was “killing her child.”

The inconsistency isn’t isolated to clinic protestors. Remember Herman Cain’s incoherent position on abortion? “I believe that life begins at conception. And abortion under no circumstances.” And then moments later: “[I]t comes down to it’s not the government’s role or anybody else’s role to make that decision. …  So what I’m saying is it ultimately gets down to a choice that that family or that mother has to make.” He later clarified that he was referring to an individual family’s decision about abortion, not “the whole big issue” of abortion. He was not talking about women’s access to health care, he was talking about his family’s choice. That’s different.

Cain’s thinking reflects the bad-old-days before Roe v. Wade, when illegal abortion was a misdemeanor reserved for the women who couldn’t afford a flight to California or Mexico. Sure, women died inflicting all manner of horrors upon themselves in desperate attempts to end pregnancies. But daughters of millionaires could quietly leave town and get things “taken care of.”

But that was then, this is now.

What we have now, as Katha Pollitt explains, is a concerted movement to redefine personhood to include fertilized eggs, embryos, and fetuses “in so many parts of the law that when the Supreme Court finally revisits Roe v. Wade, a woman’s right to terminate her pregnancy will look like a bizarre exception.” In the intervening decades since Roe, 38 states have passed laws that create a crime for causing the death of a fetus (feticide or fetal homicide), at least 23 of which apply at the earliest stages of pregnancy.

What we have now is a what Professor Angela Davis calls a “prison industrial complex”: a system of for-profit prisons so hungry for more inmates that it drives immigration policy, and pays off judges to fill jail cells with children. A system so bloated that rural economies have become dependent upon the influx of inmates, mostly young black and Latino men. We’ve lost our belief that women are too delicate, vulnerable, or necessary to family life to incarcerate: since the 1970s, the rate of incarceration for women has increased over 700%.

We have lawmakers admit that they believe that women should face “serious” criminal penalties for having abortions.  We have so dismantled the right to privacy that state-mandated technological surveillance can literally invade women’s bodies.  We have Kafkaesque bedside interrogations and arrests of women who fall down stairs when they admit ambivalence about young single motherhood.

It is not hard to see which way the wind is blowing. Indeed, this has been a long time coming. Writing in 2006, National Advocates for Pregnant Women‘s Executive Director Lynn Paltrow observed:

[I]t’s worth remembering that much has changed since 1973, long before states began declaring that zygotes are full persons under the law and before the US became the country with the largest prison population and the highest rate of incarceration in the world.

Fast forward to the present day, NAPW is helping to represent two women who are facing murder trials for losing pregnancies. Bei Bei Shuai spent over a year in an Indiana jail when her friends rescued her from a suicide attempt during pregnancy, but doctors were unable to save her baby’s life. Rennie Gibbs, the odds of a healthy pregnancy outcome already stacked against her due to her youth, race, poverty, and state of residence, suffered a miscarriage and is being tried for “depraved heart” murder in Mississippi. If women are being prosecuted for murder for unintentional pregnancy losses, we can expect no less for women who seek abortions. In fact, women are already being arrested for having abortions. While right-to-life groups claim that they see women as “second victims” of abortion rather than perpetrators, just this week, a deputy Attorney General from Idaho defended the state’s right to arrest Jennie McCormack, a woman who terminated a pregnancy using misoprostol obtained through the internet (audio of Ninth Circuit oral argument).

Make no mistake: the criminalization of abortion will send women to jail. Groups around the country are hard at work to ensure that if abortion becomes a crime again, it will become the crime of murder. For better or for worse, there is no going back to the days when clinic protesters weren’t sure what to do with women. The answer from organizations seeking to re-criminalize abortion is now is loud and clear: lock them up for a very long time.