Using Anti-Choice Law to Criminalize Pregnancy Is Nothing New

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Commentary Abortion

Using Anti-Choice Law to Criminalize Pregnancy Is Nothing New

Lynn Paltrow

Six states have laws on the books making it a crime to self-induce an abortion or obtain one without the involvement of a medical professional.

For many years, my organization, National Advocates for Pregnant Women, has warned that anti-abortion measures and related fetal “personhood” laws would be used to criminalize pregnant women—and, indeed, they already are.

Those who had abortions have been targeted for criminal investigations, interrogations, arrests, convictions, and incarceration both before and after the U.S. Supreme Court ruled on Roe v. Wade. Nevertheless, for many people, the new abortion law passed in Georgia, which may open the door to arresting women, came as a surprise.

But Georgia is not unique. Numerous states have laws that provide the foundation for a possible future in which abortion is once again prohibited—and the people who perform them, the people who have them, and the allies, friends, and loved ones who help patients obtain them are criminalized.

Let’s start with the fact that six states still have on their books pre-Roe laws making it a crime to self-induce an abortion or obtain one without the involvement of a medical professional. A seventh state, Utah, amended its criminal homicide law in 2010 to make it possible to prosecute and convict a woman for ending her own pregnancy. This law was passed following the state’s realization that no existing Utah law provided a basis for holding a desperate teenager criminally liable for hiring someone to beat her in a manner intended to cause a pregnancy loss.

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Other states have laws that explicitly or implicitly authorize the arrest of those seeking or obtaining abortions. For example, in 2014, the Tennessee legislature amended its “fetal assault” laws to authorize arrest of pregnant women who engaged in unlawful acts or omissions (terms left undefined) “with respect to an embryo or fetus with which she is pregnant.” Although the Tennessee legislature sold this law as one only addressing the issue of pregnancy and opioid use, its broad language provided the basis for numerous arrests unrelated to any type of drug use, including the arrest of someone who attempted to have an abortion with a coat hanger. (Thankfully, numerous organizations and experts in Tennessee and across the nation took action, and this law, set to sunset if not reenacted, went out of effect in 2016.)

In addition, 38 states have feticide laws that equate pregnancy termination with murder. These laws, most of which formally exclude pregnant people from criminal penalties, nevertheless set an unofficial precedent for viewing all pregnancy terminations—including consensual, voluntary ones by abortion—as crimes and the people who have them as getting away with murder.

The foundation for viewing people who have abortions as criminals, however, is even older and stronger than this.

While most anti-abortion laws specify that the people criminalized are doctors and not patients, members of the public are well aware who is seeking out and consenting to abortions. As a result, whether or not state law authorizes the arrest of individuals for having abortions or for causing the death of “unborn children” under feticide or homicide laws, the message is clear: Someone who voluntarily has an abortion is engaging in something characterized as criminal.

Think about this as well: Anti-choice forces craft abortion laws using language that depicts those who have abortion as people who, in any other context, would be arrested, convicted, and locked up for life. For example, even if so-called “heartbeat bans” (laws that prohibit abortion after six weeks, when a fetal tone can generally be detected) threaten only doctors with arrest, they necessarily identify pregnant people as a class of persons who would cruelly stop a child’s beating heart. “Dismemberment laws,” which target the most common form of second-trimester abortion, identify the people who have abortions (not just those who perform them) as those who would dismember innocent children.

Georgia claims its new abortion law is necessary to protect “the unborn” from being deprived of fundamental constitutional rights, including life and liberty. According to this evocative legislative framing, the people who have abortions are no different from murderers, kidnappers, and hostage-takers. And consider the Alabama abortion law currently moving forward. It would not only ban virtually all abortions, it also compares abortion with the Holocaust and every genocide in recent human history. What message does this send? It proclaims that people who have abortions in the United States (more than half of whom are already mothers) are collectively carrying out a genocide worse than any in human history.

This is relentless, state-sponsored propaganda against both abortion care and against the kind of human beings who obtain it. Treating people who seek and have abortions as criminals is an easy next step.

We must not allow this to happen. We must not delude ourselves that we live in a just society that won’t let this happen. We must not trust that our systems, especially our criminal law system, will somehow ensure justice for those who are arrested. NAPW’s study documenting the arrests of pregnant women—which have been overwhelmingly carried out against low-income women and women of color—as well as the work of such groups as the Innocence Project, Black Lives Matter, the Say Her Name Project, and the Drug Policy Alliance, make this clear.

We must get out of our silos and ally with drug policy reformers to ensure that no one goes to jail because they have a health problem or because of what they put into their bodies—whether it is drugs or sperm. We must listen to prison abolitionists to understand what it means to be locked up for any “crime,” whether it is the crime of abortion or any other.

We must support and amplify the work of activists in Georgia, Alabama, and the far too many other states where abortion is being banned and recriminalized. We must take action to ensure that every election is a Fair Fight, so that our bodies and lives are not appropriated by legislators and governors who deprive formerly incarcerated people and people of color of fair participation.

We must demand universal health care for all, including people with the capacity for pregnancy—whether they need care for continuing the pregnancy to term, are experiencing a pregnancy loss, or are having an abortion. We must make sure people know that regardless of the onslaught of dramatic legislation, abortion remains legal in every U.S. state and territory. And finally, as we fight against criminalization of people who have abortions, we must take hope in and courage from the fact that no prohibition law has ever, or will ever, succeed in stopping pregnant people from exercising their human rights.