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July 15, 2023 Feature

From the Front Lines of Serving Abortion Seekers’ Legal Needs, a Call to the Legal Profession

Sara L. Ainsworth and Farah Diaz-Tello

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court did not simply “return” abortion legality to the states. Its decision enabled a direct assault on human and constitutional rights and created an explosion of threats—some hollow, some real—to turn the criminal legal system into a tool that reaches within communities and across state boundaries to punish people for seeking the health care they need, and enforce archaic gender norms and criminalize those who defy them.

Unfortunately, the threat of criminalization alone has done much of the work of chilling people from getting the care they need. In our work to provide direct legal services to people needing abortion care, we see firsthand that people are afraid to seek abortion care even where it is legal and protected because of the proliferation of misinformation about what is lawful and what has been criminalized. And lawyers, using their “issue spotting” skills honed in law school and beyond, have perpetuated these fears in the media by publicly imagining all the things a prosecutor could possibly do to target a person who seeks an abortion.

But these cursory and attenuated legal interpretations, however well-intended they may be, have real, dire consequences for real people. When we spread the message that even an Uber driver can be charged with “aiding and abetting” an abortion, health care providers are afraid to share life-saving information about self-managed abortion and how to seek aftercare. When we spread the message that abortion pills, which have been in safe use for decades around the globe, are or may become “illegal,” people may turn to dangerous, and even potentially deadly, means to end a pregnancy. Our challenge to lawyers, and those who practice criminal law in particular, is not only to prepare along with us to defend people who are criminalized for their reproductive decisions or for helping others access abortion care, but to distill from this rapidly evolving legal landscape where, and against whom, the real criminalization threats lie, and to communicate risks with clarity so people can navigate this treacherous landscape.

The Supreme Court’s Rejection of 50 Years of Precedent Notwithstanding, as of This Writing, People Retain a Legal Right to Terminate a Pregnancy in the Majority of States

It is important, then, to start with who is not at risk of criminalization of abortion. People in the United States can still get an abortion from a provider in a state where abortion is legal without the threat of arrest or prosecution. As of this writing, 13 states are enforcing near-total abortion bans. (Two excellent resources for staying up to date on the legal status of abortion in the US are After Roe Fell: Abortion Laws by State, Ctr. for Reproductive Rights, and Find Verified Abortion Care & Support, Abortion Finder.) The dangers of these bans to human lives cannot be overstated, especially for the people living in several southeastern states who now must either travel hundreds of miles, remain pregnant against their will and in spite of the risks of pregnancy, or self-manage their abortion in a legally hostile climate. Yet, millions of people who may need abortion care live in states where abortion is currently still legal, even if restricted; millions more live in states where abortion will remain protected by law and may now be even more accessible than it was before, as lawmakers and voters responded to the loss of the federal recognition of the constitutional right to abortion by shoring up legal protections and eliminating old barriers to access.

In Michigan, for example, the ability to make decisions about one’s own body, free of state interference before and during the whole of pregnancy, is now a fundamental right in the state constitution thanks to the successful passage of Proposition 3 last November. In Kansas and Kentucky, voters rejected measures intended to eliminate the state constitution’s protection for abortion rights. Oregon lawmakers provided financial resources to abortion funds to help people get the abortion care they need.

But even those who live in states where abortion has been criminalized are exercising constitutional rights when they travel to another state to get the care they need. Those who live in states where abortion is entirely banned, such as Alabama or Idaho, or banned for most of pregnancy, such as Georgia, have the constitutional right to travel outside their states to get the care they need, as Justice Kavanaugh acknowledged in his concurrence in Dobbs. While there have been attempts on the part of abortion-hostile states to erect barriers to abortion for their citizens by attempting to hale out-of-state providers into their courts, there have thus far been no attempts to restrict people from leaving their state to seek care. It is critical that people be aware of and able to avail themselves of every possible option.

We do not make light of the barriers—some insurmountable—that people face when they are forced to travel to another state for medical care. The denial of abortion care means that a pregnant survivor of intimate partner violence may have to stay pregnant with an abuser because it is impossible to get away from them or use the car without them knowing—risking further violence and entrapment in the abusive relationship. It may mean that a young person is forced to remain pregnant against their will because missing school days while trying to obtain a judicial bypass (a court order to allow an abortion without parental involvement) in another state is impossible. Bans on abortion care put pregnant people’s lives at risk during an obstetric emergency; forcing them to travel from an emergency room to another state to get the care they need further endangers them.

The US has always had an egregiously two-tiered system of access to abortion care, where those with financial means get abortion care and those without cannot, with often devastating effects on their lives and families. Without doubt, abortion bans worsen that disparity, which falls most heavily on Black people, Indigenous people, other people of color, immigrants, young people, LGBTQ people, and people living in poverty. And, at the same time, misinformation and lack of knowledge of one’s legal rights can also create barriers. People should know that when they travel to states where abortion is protected and get an abortion from a licensed health care provider in that state, they are, generally, legally safe.

The Primary Targets: Health Care Providers

Health care providers, however, are specifically targeted by most, if not all, post-Dobbs criminal codes, just as they were from the 19th century until the 1960s, when states began to decriminalize abortion in the years leading up to the decision in Roe v. Wade. It is tragic, but unsurprising, that in states where bans are in effect, abortion providers, clinics, and hospitals have stopped providing abortion care. To date, we are not aware of health care providers living in states that prohibit abortion acting in defiance of those bans; indeed, some of these laws are so vague and confusing that providers and hospitals are refusing to provide the standard medical care necessary after miscarriage or when a pregnant person’s health is threatened, out of fear of prosecution. Anti-abortion policy lawyers may claim that such interpretations are wrong and argue that such care is still lawful under these criminal codes, but that belies the chilling effect these laws hold over the most basic of medical responses to obstetric emergencies (an effect that has led directly to pregnant people being forced to suffer health risks from denials or delay in care, and litigation over the preemptive effect of federal law’s protection of people’s rights to receive emergency treatment on abortion bans in Idaho and Texas).

Withholding care out of fear of prosecution is the expected result of laws that impose felony criminal liability. Abortion bans’ punishments vary: South Dakota has made it a Class 6 felony, punishable by up to two years’ imprisonment, whereas in Texas a provider who violates the state’s trigger ban, HB 1280, could be subjected to prosecution for felonies that carry penalties of up to 99 years in prison. What these bans have in common is language purporting to allow abortions when a pregnant person’s life is at risk, but so vague as to make it difficult for a health care provider to understand what is allowed and what is not. As one federal district court judge explained, in an order temporarily enjoining portions of Arizona’s restrictive 2021 abortion law, uncertainty threatens constitutional rights. “When the punitive and regulatory weight of the entire [. . . ] code is involved, Plaintiffs should not have to guess at whether their conduct is on the right or the wrong side of the law. Nor should they have to hire a lawyer and file declaratory judgment actions in state court. . . . A law which requires such extraordinary effort to decipher fails to give ordinary people fair notice of the conduct it permits and proscribes.”

The result is that in less than a year after the Supreme Court’s decision, pregnant people’s lives, as well as their humanity and decisional autonomy, are at risk. As Dr. Jessian Munoz told the AP in July 2022, he and his colleagues in Texas were treating a pregnant patient who had started to miscarry and had developed an infection. As Dr. Munoz explained, because the providers could still detect a fetal heartbeat, providing an abortion was “illegal,” so they “watched her get sicker and sicker” until the fetal heartbeat stopped; at that point she required surgery and had to be put on a ventilator. As the New York Times reported in September 2022, a study of two Texas hospitals “found that women had to wait an average of nine days for their conditions to be considered life threatening enough to justify abortion. Many suffered serious health consequences while they waited, including hemorrhaging and sepsis, and one woman had to have a hysterectomy as a result.”

Those whose loved ones need abortion care, or those whose work serves people who need practical services like a car ride or a hotel room to access care in a state where abortion is legal, are unwilling to stand by and watch people suffer. Given the numbers of people who seek abortion care, or need miscarriage care, or need medical intervention for a pregnancy complication or a health issue unrelated to the pregnancy itself, frankly every person, regardless of their beliefs about abortion, is likely to be touched by the denials of care that criminalization engenders. Legislators that have banned abortion understand this, and thus target the people we call “supporters” or “helpers”—but who are, in fact, all of us.

Other Targets: Any of Us Who Act to Help Someone Else Access Abortion Care

Abortion stigma may lead people to believe that those who seek abortion care are isolated, but far more often, people who terminate their pregnancies do so with the support of others. Most receive emotional, material, and practical support from their partners, parents, spouses, and friends. Many turn to clergy. Those in danger from domestic violence, or who have been sexually assaulted, seek help from support systems, such as domestic violence advocates, legal services, and advice hotlines. As one 30-year-old Latina woman who was forced to leave Texas for an abortion told researchers, “I really feel like this whole Texas law—I don’t agree with it. It’s not right, and it’s so hard. I can just imagine the women who don’t have the support system that I have, how hard it is for them to get an abortion if they’re able to. . . . If I didn’t have my support system, it would have been so hard, if not impossible, to get this done.”

In addition to relying on their own support systems, the vast majority of people who seek abortion care in the US receive that care in a clinical setting with a health care provider and with some kind of assistance with the costs of that care, whether it is through abortion fund donations, through public insurance coverage in 16 states, or with private health insurance. Others self-manage their abortion, sourcing safe and effective abortion pills online or elsewhere. And thousands of people use online searches to learn about abortion care resources.

Despite the importance of abortion support, lawmakers and abortion opponents have stated their intent to use decades-old provisions to police and punish people’s friends, family members, and loved ones, and threaten their legally protected relationships with people like faith leaders, health care providers, and attorneys. They seek to cut off networks of support by threatening harassing civil suits or criminal prosecution of people who donate funds to people who cannot afford abortion care, companies that pledge their support of people and employees who need abortion care, and employers who reimburse transportation costs for their employees who have to leave a state to get the care they need. They want to chill access to abortion care even outside their own borders by threatening lawsuits against those who help someone get an abortion, and attempting to pass laws that would purport to criminalize those who simply provide information to a person who lives in a state that has banned or severely restricted abortion. The consequences of such a legal regime are grave—for the affected individuals, for society, and for the rule of law.

The fear of unjust prosecution is well-founded, as some states’ attorneys general claim that old laws, either long enjoined or impliedly repealed by subsequent enactments, can now be used to prosecute people who “aid and abet” an abortion—even though these threats frequently distort what would actually be necessary to prove the elements of the supposed crime.

In response, other states’ lawmakers have acted to protect their residents, including health care providers, from frivolous lawsuits and threats of criminalization from other states, and from risks of criminalization within their own states. In March 2022, Washington State passed a law explicitly forbidding the criminalization of any person for ending their own pregnancy, or for helping someone else obtain an abortion. California acted not only to prohibit such criminalization, but to halt it by eliminating unnecessary requirements that people’s pregnancy losses be reported to coroners and ensured enforcement by creating a private right of action for anyone targeted by the state for investigation, arrest, or prosecution for their pregnancy outcomes. Connecticut acted to prohibit investigations and enforcement of such out-of-state actions, allowing residents to recoup any judgment against them for abortion care, and prohibiting extradition for acts lawful in that state. New York and New Jersey followed suit.

Although there are no reports of a person being criminalized for helping someone leave their state or sharing information about where and how to access an abortion, the National Right to Life Committee has urged anti-abortion lawmakers to propose its model legislation that would further criminalize people who help someone else. Among other things, its model bill proposes criminalizing as “aiding and abetting” acts such as informing someone about self-managed abortion via the internet. Significantly, however, even that model legislation maintains what is a key feature of the vast majority of enacted and proposed bans: an exception from criminal liability for the person who has an abortion.

People Who Have Abortions Were Historically, and Are Now, Typically Exempt from Prosecution Under Laws Banning Abortion

As the Supreme Court recognized in Roe v. Wade (and, disturbingly, did not touch on in Dobbs), at common law “the pregnant woman herself could not be prosecuted for self-abortion or for cooperating in an abortion performed upon her by another.” Roe v. Wade, 410 U.S. 113, 151 (1973). With few exceptions, state lawmakers followed this rule and did not criminalize people who had abortions in the years prior to the recognition of the constitutional right to abortion. That legal understanding holds true today. Nearly every abortion ban, whether currently in effect or in litigation, exempts the person who has an abortion from criminal liability. For example, all of Arkansas’s abortion criminalization laws, including its pre-Roe ban, exempt the person who has an abortion from criminal liability. From Idaho to Louisiana, from Texas to North Dakota, the majority of abortion bans follow suit, and explicitly protect people who have abortions.

Even those bans without express exemptions typically use language that makes clear that the targets of the law are people who provide abortions, not those who have them. For example, Utah’s abortion ban, currently enjoined, criminalizes someone who “performs” an abortion. This is not an outlier position; in fact, it is the position of most mainstream anti-abortion groups, including the National Right to Life Committee, whose model legislation contains such exemptions.

The fact that these bans exempt people who have abortions does not, of course, make them palatable, constitutionally sound, or remotely protective of pregnant people. Their impact has been life-threatening already, and their continued existence and threat of enforcement put more people’s lives at risk. Just as threatening is the imposition of state control over people’s decisions about their bodies, lives, and families. And by criminalizing abortion care, these laws stigmatize it and the people who have abortions, creating the risk that despite the exemptions in the abortion codes, law enforcement will try to find a way to criminally punish people for having abortions despite the clear prohibition.

But as Research Demonstrates, People Who Have Abortions Have Remained a Target for Politically Motivated Prosecution—Even When Roe Was in Effect

Even while Roe was in place, law enforcement officials in states across the country investigated, arrested, and charged people with criminal offenses for self-managing abortions. In every instance, this criminalization causes humiliation and harm, from stigma in one’s community, to loss of custody of children, to loss of liberty through incarceration. If/When/How’s recently published preliminary report, Self-Care Criminalized, examined criminal proceedings against people accused of self-managing, or helping someone else self-manage, an abortion between 2000 and 2020. Within that time period, there were 61 cases of people criminally investigated or arrested for allegedly ending their own pregnancy or helping someone else do so. As more people self-manage abortions, and stigma and scrutiny of abortion increase, an increase in the number of people criminally prosecuted for self-managing their abortions seems a practical inevitability.

And that increase will be felt by the people already disproportionately affected by criminalization. The disparate impact of all aspects of criminalization upon communities of color in the US is well-documented. This disparate impact is also present in the criminalization of people for abortion or pregnancy loss. There is every reason to assume that the same people who are disproportionately surveilled, arrested, prosecuted, and jailed in other contexts will bear the brunt of this new kind of surveillance and policing; indeed, as If/When/How’s research and previous research into the criminalization of people for their pregnancy outcomes demonstrates, Black women already have.

Being arrested or jailed for a self-managed abortion or pregnancy outcome carries all the usual penalties of criminalization: lost liberty, potential child welfare interventions, reduced economic prospects, immigration consequences, burdens on voting or political participation, and more. Those consequences will be borne disproportionately by people who are already subjected to discriminatory treatment.

But the reversal of Roe does not automatically grant police and prosecutors the authority to criminalize people for self-managing abortions. As a matter of due process, everyone has a right to notice of what the law demands of them if they are potentially subject to loss of their liberty for violating it. And in all states but two, Nevada and South Carolina, there is simply no law that explicitly makes it a crime for a person to end their own pregnancy. Indeed, the trend has been to repeal any such laws, with New York, Delaware, Arizona, and Oklahoma all repealing criminal bans on self-managed abortion within the last four years. As of this writing, South Carolina’s legislature is currently considering a bill that would repeal its ban, and Nevada’s ban is under constitutional challenge before the state’s highest court. In the seven months since Dobbs was decided, legislatures in Louisiana, Arkansas, Indiana, and Oklahoma have all considered bills that would impose criminal penalties on abortion-seekers; all have thus far either been defeated or failed to gain traction without the support of mainstream abortion opponents.

Such a clear legislative trend away from imposing criminal penalties upon people who self-manage their abortions draws the discriminatory and unlawful nature of attempts to prosecute into sharp relief. As criminal defense attorneys—and public defenders particularly—already know, the letter of the law is only a small part of whether an individual will experience criminalization. But rather than giving fodder to the prosecutorial imagination by positing thought experiments and creating new crimes by analogy, the task before us is to hold state actors accountable to the limits of the authority they have been given and ensure that they don’t destroy people’s lives as they run roughshod over the law. This directive comes not only from reproductive justice advocates, but from abortion opponents as well: In 2022, the National Right to Life Committee, joined by state-based organizations representing virtually every state, published an open letter entitled “Criminalizing Women Who Have Abortions Is Not Pro-Life” in response to a Louisiana lawmaker’s attempt to make abortion a crime of homicide for people who had them. That bill was defeated.

Conclusion

The Dobbs majority denies the humanity of women and other people who have the capacity for pregnancy. As the dissenters explain, “respecting a woman as an autonomous being, and granting her full equality, mean[s] giving her substantial choice over this most personal and most consequential of all life decisions.” Blithely dismissing that reality, the majority ignores decades of jurisprudence that recognized the necessity of gender equality to political participation, employment equality, and liberty. Instead, it grounds its substantive due process analysis on the archaic musings of male judges from the 13th century to the time of the Fourteenth Amendment’s ratification in 1868, a time period when women were not recognized as equal citizens. And its result? A chaotic churn of new legislation and threats of criminalization.

But as of this writing, the majority of US states still protect the legal right to abortion. And regardless of where they live, people in the US have constitutional rights—among them freedom of speech, association, religious exercise, privacy, equal protection, and due process. The first step that attorneys who care about reproductive justice can take toward ensuring that people can exercise those rights is to affirm them by not needlessly conceding to the state powers that still belong to the people.

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Sara L. Ainsworth

If/When/How

Sara L. Ainsworth is Senior Legal & Policy Director at If/When/How, where she leads the organization’s work to use litigation, policy advocacy, and direct legal services to end punitive state responses to reproductive decisions and support all people’s access to reproductive health care.

Farah Diaz-Tello

If/When/How

Farah Diaz-Tello is Senior Counsel and Legal Director at If/When/How, where she focuses on ensuring that people can make decisions about their reproductive lives with dignity and without coercion or punishment.