You’ve heard the stories of the coat hanger and the back alley, those bloody days before Roe v. Wade. Sen. Patrick J. Leahy told one recently at the Supreme Court confirmation hearings for Judge Neil M. Gorsuch. As a Vermont prosecutor in 1968, three years before the court struck down state abortion bans, cops woke Leahy up in the middle of the night, because “a young co-ed nearly died from bleeding from a botched abortion.” The senator’s drift was clear: If confirmed, Gorsuch could cast a vote, or several, to bring back those horrors (if not the archaic phrase “co-ed”).
This is by now a rehearsed conflict. Mention dying women to antiabortion activists, and they insist that women weren’t prosecuted for having unlawful abortions before Roe v. Wade and won’t be if abortion is banned. Women, in this formulation, are victims of cruel abortionists. Indeed, Leahy wound up prosecuting the seedy go-between in that case, not the woman.
It is a curious but long-standing proposition by the antiabortion movement: Abortion is murder, but women shouldn’t be held accountable. Conservative groups were publicly aghast when candidate Donald Trump blurted out last year that “there has to be some form of punishment” for women who get abortions if they’re banned. Eventually, Trump’s third and final statement that day declared: “The doctor or any other person performing this illegal act upon a woman would be held legally responsible, not the woman. The woman is a victim in this case as is the life in her womb.”
But as the conservative Supreme Court majority takes shape, these narratives — the dying woman, the evil doctor — are lacking. Even if the justices overturn Roe v. Wade and legislators immediately end abortion rights in 22 states, women wouldn’t necessarily have to endanger their lives to get abortions. And they wouldn’t need doctors, either. Increasingly, women can end a pregnancy by their own hands. In these cases, there is only one person to “be held legally responsible.” There is little doubt that states would delight in prosecuting her.
She goes on to describe in some detail the use of misoprostol, the abortion pill. But it presents as many problems as it solves, and they are very “Handmaid’s Tale” indeed:
Taking matters into your own hands has never been medically safer — or more legally perilous.
If a conservative majority on the Supreme Court reverses or weakens Roe, it’s easy to see what happens next. Fifteen states have pre-Roe abortion bans still on the books; four have automatic “triggers” to outlaw the procedure if the precedent falls. The Guttmacher Institute estimates that 57 percent of women of reproductive age live in states that oppose abortion rights. Only 17 states have “secure” laws protecting abortion rights if the court overturns the 1973 decision, according to the Center for Reproductive Rights. While Roe enjoys popular support, since 2010, Republicans have been obliging antiabortion activists with a record number of restrictions in states under GOP control.
During the campaign, Trump made the most explicit promise yet to evangelicals that he would get them their “pro-life” Supreme Court majority, which he did.
A federal ban on abortion after 20 weeks — premised on the notion, disputed by major medical organizations, that a fetus can feel pain at that point — has already passed the House of Representatives. If it became law, the court would have a chance to revisit the question of whether a fetus should be granted the rights of a person, a stance long advocated by Gorsuch’s dissertation adviser and mentor. (Gorsuch has not stated his position on the matter.)
In the more than 40 years since Roe v. Wade, the antiabortion movement has been busily laying the groundwork for fetal personhood, both in public and in doctors’ offices. In South Dakota, abortion patients must be warned that they will “terminate the life of a whole, separate, unique, living human being.” In four states, abortion providers are required to perform an ultrasound and display (and describe in detail) the image to the woman.
All this stands in stark contrast with the pre-Roe era. “At least well into the early decades of the 20th century, most people thought of abortion as something on a continuum with various forms of contraception,” says James Mohr, a historian who has written extensively on the topic. Now even contraception is sometimes seen as a form of abortion. The Hobby Lobby craft-supply chain won a Supreme Court decision in 2014 that its employer-provided health insurance didn’t have to cover intrauterine devices or emergency contraception because, in its owners’ view, preventing the implantation of a fertilized egg is a kind of early abortion. If even a zygote has personhood rights under this formulation, how is a woman who has an actual abortion not a wanton killer?
If states regain unfettered control of abortion law, will they punish women for trying to end their pregnancies? In fact, they already do. According to data gathered by Berkeley Law’s Self-Induced Abortion Legal Team, part of the school’s Center on Reproductive Rights and Justice, 17 women are known to have been arrested since 2005 after being accused of self-inducing abortions. Even if it isn’t explicitly illegal in their states, prosecutors have brought charges like feticide or violating laws requiring that an abortion be provided by a physician. “The danger of people being arrested, being jailed, being separated from their families, being potentially detained and deported,” says Jill Adams, executive director of the center, “these are the real dangers of self-induced abortion in 2017.”
Just ask Purvi Patel. Doctors at the Indiana hospital where she showed up in 2013, bleeding after taking pills to end her pregnancy (which, she maintained, she thought was far less advanced than the 25-plus weeks she’d already notched), called the police. Abortion is legal in Indiana, and the state’s feticide law was passed to protect pregnant women from violence. Yet she was convicted of feticide and neglecting a dependent, and was given a 20-year prison sentence. Her sentence was reduced on appeal, and she went free last September after 525 days. In March, authorities in Chesterfield County, Va., arrested Michelle Roberts on felony charges of “producing abortion or miscarriage,” The Washington Post reported, after police found fetal remains buried on her property.
These women’s arrests suggest a future without Roe, one in which it will fall on prosecutors and juries at the municipal level to determine whether pregnant women should be subject to criminal sanction. “No matter what the national antiabortion movement says, it’s not up to them — it’s up to local prosecutors who are trying to make a name for themselves,” says Priscilla Smith, a clinical lecturer at Yale Law School who successfully argued a case before the Supreme Court on behalf of new mothers prosecuted for using cocaine while pregnant. “But the movement sets the tone by calling it murder.”
Laws that enable zealous prosecutors are already on the books in many states. Before Roe, there were no feticide statutes like the one under which Patel was convicted. Passed across the country in the name of adding penalties for attackers who harm pregnant women and their fetuses, such laws, including Indiana’s, often don’t explicitly exempt pregnant women from prosecution. These statutes have ensnared women who weren’t trying to end their pregnancies, including those in car accidents, drug users or women who disobeyed doctors, including by refusing Caesarean operations. “There is no way to recognize embryos or fetuses as separate persons without subtracting women from the community of constitutional persons,” argues Lynn Paltrow, founder and executive director of National Advocates for Pregnant Women, which represents many of these women. Her organization, which collects data, says that arrests of women for actions (or refusals to take action) related to their pregnancies have dramatically risen in the past decade, to 700 instances.
What’s more, the advent of misoprostol means women bear more agency — and, presumably, culpability — in seeking abortions, and doctors have less. The relative safety of self-induced abortion means fewer women imperiling their lives, like the one Leahy described. But it also upends longtime mainstream abortion rights axioms, including that scores of women will die if abortion is banned or that abortion should be between a woman and her doctor.
Doctors’ rights have historically played a huge role in protecting legal abortion, including in Roe itself. In the first half of the 20th century, physicians, who once helped ban abortion in the name of regulating the profession, took up the cause of legalizing it, citing hospital wards filled with hemorrhaging young women. According to the Guttmacher Institute, thousands of women died because of unsafe abortions in the decades before Roe, and even after the spread of antibiotics helped save women’s lives, “illegal abortion still accounted for 17% of all deaths attributed to pregnancy and childbirth” in 1965. (And those are only the deaths for which abortion was officially reported as a cause.) No wonder the physician’s role has taken on a moral valence: One of Roberts’s neighbors in Virginia told The Post: “It wasn’t right. She should have gone to a doctor. If you don’t want the baby, you go to the doctor.”
Yet the safety of misoprostol, used properly, has prompted some advocates to argue that doctors needn’t be involved in prescribing it, especially in communities that fear immigration authorities or have historical reasons to mistrust the medical profession (thanks to episodes like state-sponsored forcible sterilization and the Tuskegee syphilis experiment). A Dutch organization, Women Help Women, just launched a U.S. version of its site counseling women on how to self-administer an early abortion. In a forthcoming article in a prominent obstetrics journal, Grossman and Nathalie Kapp write that misoprostol and mifepristone may meet the requirements to be safely taken over the counter in the first 10 weeks of pregnancy.
Through their activism, their research and their amicus briefs with the Supreme Court, doctors are still crucial players in keeping abortion legal and would face charges under any abortion ban. But it was a doctor who called the cops on Purvi Patel. And the new science, combined with the possible new laws, could mean that women undertake their abortions alone.
And the US is now a mass incarceration state with huge incentives coming from a number of different directions, from commercial to political, to find offenses to fit the punishment.
The criminal justice system has seen technological advances that would ease prosecutions of women in a way unimaginable before Roe. In Patel’s case, for example, her text messages and Internet search history were used against her. And Paltrow points out that a routine urine test of a suspected drug user could also yield a positive pregnancy test, with added criminal ramifications.
Meanwhile, in the years since Roe, it has become harder for elite decision-makers to empathize with desperate women who take matters into their own hands. “Co-eds” like the one invoked by Leahy still have abortions, but according to the Guttmacher Institute, “over the last few decades, abortion and unintended pregnancy have become increasingly concentrated among poor patients.” These women, who face the most significant barriers to preventative care and difficult decisions about whether they can afford to travel for an abortion or even pay for the procedure, are easier to demonize when their circumstances are more remote to prosecutors, politicians and the voting public.
Even sympathetic lawmakers may be boxed in politically. Before Roe, you could find Republicans who supported liberalizing access to abortion and Democrats who opposed it. Now, it is hard to imagine an issue more partisan and polarized, at least among politicians. This isn’t an accident, as Reva Siegel and Linda Greenhouse have shown, but rather a strategic maneuver that datesto the Nixon era. If abortion is even more restricted or is banned outright, the tribal identity that is party affiliation in America will color these women’s fates.
All of this means a potential future that looks very little like the past. Supporters of abortion rights should get ready for what illegal abortion in America will look like. Because their opponents already are.
