As America prepares for a future in which the federal protection of abortion rights is removed as the supreme court appears set to overturn the Roe v Wade ruling, experts are warning that it could pave the way for increased prosecutions of those who seek abortions.
Last week a Louisiana bill classifying abortion as murder was withdrawn after causing a firestorm of controversy, mainly for seeking to subject people seeking to end their own pregnancies to criminal prosecution. For years, much of the anti-abortion movement has insisted that the criminalization of abortion should target providers but exempt pregnant people.
But that view stands in tension with the trajectory of the anti-abortion movement, which has successfully labored to enshrine the notion of “fetal personhood” in law and rhetoric, leading to the growing criminalization of pregnancy outcomes in recent years.
The idea that human life begins at conception and must be protected by the state cannot restrict abortion so long as the protections of Roe v Wade stand. But the same idea has been planted in dozens of state criminal codes that grant zygotes, embryos and fetuses legal status as victims in other contexts.
Even with Roe in place, the notion that fetuses have status separate from the people who carry them has helped fuel the criminalization of at least 1,700 people – probably a dramatic undercount, advocates say – in connection with their pregnancies, for crimes like homicide and delivering drugs to a minor.
It has also paved the way for a wider dragnet should the supreme court overturn Roe, as the draft opinion leaked earlier this month signaled will happen in a matter of weeks.
Most such laws exempt the pregnant person from criminal charges. But that didn’t stop the arrest of Lizelle Herrera, a Texas woman recently charged with murder for “intentionally and knowingly causing the death of an individual by self-induced abortion”. The charges were ultimately dropped, with the district attorney admitting they had no basis in law. Self-managed abortion remains legal in the vast majority of states. (South Carolina, Oklahoma and Nevada are exceptions.)
Similar incidents could become more common without Roe, if 26 states ban abortion as expected. “We could see prosecutors emboldened to step beyond what the law permits,” says Farah Diaz-Tello, senior counsel and legal director of If/When/How, a reproductive justice group.
Diaz-Tello’s organization operates a legal helpline to help people understand their rights if they seek to manage their own abortions. She says the helpline has seen a dramatic uptick in calls since the draft decision overturning Roe was leaked.
How ‘fetal personhood’ took hold
Roe says pregnant women have the right to an abortion and that fetuses are not people entitled to the constitution’s protections. But that finding in 1973 came with a stipulation. “If this suggestion of personhood is established,” Justice Harry A Blackmun wrote in the decision, the “case, of course, collapses.”
Over the last half-century anti-abortion activists saw Blackmun’s point as an invitation. Within a week, Representative Lawrence Hogan of Maryland introduced the human life amendment to overturn Roe and declare human life to begin at conception. It has repeatedly been introduced, and failed, since.
With a national ban out of reach, an incremental, state-based approach took hold to normalize personhood. In 1989, the supreme court upheld a Missouri law that stated in its preamble that “the life of each human being begins at conception”, and “unborn children have protectable interests in life, health, and wellbeing”. While that language came into direct conflict with Roe, the court ruled the preamble could stand because it didn’t actively restrict abortion.
In a scathing dissent, Blackmun gave an ominous warning: ″For today, the women of this nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows.”
The 1989 ruling encouraged abortion opponents to seed fetal personhood as widely as possible, helping fuel the spread of criminal laws recognizing fetuses as potential victims. This idea has been particularly toxic in combination with the war on drugs that exploded in the 1980s, disproportionately targeting women of color.
In her book Policing the Womb: Invisible Women and the Criminalization of Motherhood, the legal scholar Michele Goodwin calls Black women the “canaries in the coal mine” for the government’s policing of pregnancy.
A study by the National Advocates for Pregnant Women (NAPW) found that 52% of cases of women targeted for pregnancy outcomes between 1973 and 2005 were Black, despite Black women making up about 14% of people of reproductive age. In 2003, Goodwin has written, Regina McKnight, a Black woman from South Carolina, became the first woman convicted for “homicide by child abuse” for a stillbirth due to drug use. Her case “inspired similar prosecutions of other poor black women and then of other women”. McKnight served seven years before her sentence was overturned.
According to the National Association of Criminal Defense Lawyers, there are thousands of crimes in the federal criminal code that may be used against pregnant people when Roe falls.
“We really can’t look to pre-1973 for any sort of help in understanding what we’re facing, says Dana Sussman, acting executive director of NAPW. “We’re in a completely different universe when it comes to our willingness to criminalize people.”
To date, 39 states have “fetal homicide” laws. Fetal personhood also lives in the Republican party platform and in a number of state laws that have been blocked by federal courts thanks to the protections that the supreme court’s draft opinion undoes. They have been the subject of ballot initiatives in Mississippi, North Dakota and Colorado – where they failed by a wide margin, in part because of their implications for in-vitro fertilization – along with Alabama, which approved a fetal personhood amendment to its constitution in 2018.
As with Lizelle Hererra, advocates have often been able to rally public outcry in support of people arrested for actions related to their pregnancies. But not every case attracts public attention. And dismissed cases do not erase the trauma and stigma of criminalization and incarceration.
In 2013, for example, Purvi Patel was charged with feticide and felony child neglect in Indiana for a self-induced abortion and sentenced to 20 years. Her conviction was overturned, but not before she spent three years in prison. In Oklahoma, Brittney Poolaw is currently serving a four-year sentence for manslaughter after admitting to hospital staff when suffering a miscarriage that she had used drugs.
The word “child” in several states – South Carolina, Alabama and Oklahoma – has been interpreted by prosecutors and courts to apply to fetuses throughout the criminal code. “State prosecutors throughout those states can use any law that was intended to apply to the abuse or harm of children to fertilized eggs, embryos and fetuses,” says Sussman.
“In those states, we’ve already lost that argument. And we anticipate we will lose more of them without Roe and Casey.”
‘The chaos is by design’
Diaz-Tello cautions against defeatism. If pregnant people remain exempt from criminalization under existing laws and future bans, legal advocates can win challenges to prosecutions that arise.
“As long as the law is not permitting people to be criminally prosecuted, we’re going to be here to hold them to it,” she says. Even if Roe is no longer the law of the land, “we still have the power to ensure that laws are not passed that criminalize people for seeking abortion care”.
Whether these exemptions hold remains to be seen. But the threat of criminalization is not about to recede given a patchwork of extreme restrictions and an emboldened anti-abortion movement allying with prosecutors.
“The chaos and the confusion of all this is by design,” says Brigitte Amiri, deputy director of the reproductive freedom project at the American Civil Liberties Union. “When people are confused and scared, it makes it less likely that they will seek access to abortion and it increases the stigma related to abortion. And all of this falls most heavily on people who are in the most marginalized communities.”