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April 12, 2023 HUMAN RIGHTS

The End of Roe and the Criminalization of Abortion: More of the Same for Too Many

by Farah Diaz-Tello and Sara Ainsworth

For most people, the fall of Roe v. Wade was an awakening to the question of what it might mean for the state to treat abortion as a crime, not only in the sense of the toll it will take on the lives of people unable to access care but also in how the law itself would operate, and upon whom. The sudden removal of federal constitutional guardrails on abortion restrictions comes after decades of rhetoric from opponents of abortion that a common and necessary medical procedure is violence, murder, or even “genocide.” This has led to confusion, fear, and speculation as to what it means for abortion to be “illegal.”

To hear politicians and media tell it, it will mean scores of white, middle-class mothers and their teenage daughters being pulled over by police at the state line or dragged from the dinner table based on information gleaned from menstrual tracking apps. Tempting though it may be to reach for fictional dystopias to understand a future without constitutional protections for abortion rights, the reality is much more likely to approximate that of other places where abortion is not legally accessible: brutal and unequal. As the rallying cry of Argentinian activists who recently succeeded in decriminalizing abortion in that country warns: Las ricas abortan, las pobres mueren. The rich have abortions, the poor die. But in the United States, even those who succeed in safely ending a pregnancy may face the possibility of prison.

Reproductive violence at the hands of the state to which so many people are newly awakened has long been a reality to those for whom abortion access was an illusory promise. People have been criminalized for ending their pregnancies before, during, and after Roe, and it is critical that lawyers committed to justice, equality, and human dignity understand the stakes.

People have been criminalized for ending their pregnancies before, during, and after Roe.

People have been criminalized for ending their pregnancies before, during, and after Roe.


Lessons from the Front Lines of Decriminalizing People’s Reproductive Lives

Since 2015, the organization we work for, If/When/How: Lawyering for Reproductive Justice, has worked to ensure that people who end their pregnancies outside of the formal medical system (known as self-managing an abortion) can do so with dignity and without punishment. We provide criminal defense to people charged with a crime for self-managing an abortion as well as train defense attorneys on the particular issues these cases raise. We run the Repro Legal Helpline, which provides legal advice to abortion seekers and legal referrals for people facing criminal investigations or proceedings for self-managing an abortion. And we produce in-depth, mixed-methods research into cases of criminal prosecutions for self-managed abortion to understand how criminalization happens so we can end it. This vantage not only informs our policy advocacy, but it also provides unique insights into where true threats lie and what it takes to keep abortion seekers safe in the post-Roe future.

Our ongoing study of cases from 2000–20 has uncovered 61 cases in which an individual has been subject to the criminal legal system because they actually or allegedly self-managed an abortion or helped someone else do so. The findings do not reveal middle-class white mothers but rather people in rural areas who didn’t have access to a car or who couldn’t take time off work to get to the nearest clinic hours away; people who relied on medications available over the counter in their home countries when the U.S. medical system failed them; and people already trying to raise children on the ragged edge of poverty in places where Medicaid will not cover the cost of an abortion. The profile of people criminalized for self-managing an abortion is the exact profile of people most likely to be unable to access clinic-based abortion care. These are the same people who are most likely to be subject to our punitive legal systems, including people living in poverty, people of color, and immigrants.

 We looked at the interaction between the law and people’s experience of it. Currently, only two states, Nevada and South Carolina, have laws criminalizing self-managing an abortion. But the majority of the cases, which were spread across 26 states, arose in a state with no law outlawing self-managed abortion. Instead, people were charged with a variety of crimes never intended to apply to self-managing abortions, such as mishandling of human remains, concealment of a birth, and even homicide. In fact, a homicide charge was considered in 43 percent of the cases. This was twice as likely to be the case when the accused was a person of color.

 And we also looked at how people came to the attention of law enforcement in the first place. At the heart of most of these cases is a betrayal. Someone entrusted with sensitive information—a health care provider, a friend, a partner (far too often, an abuser)—turned that information over to law enforcement. And once law enforcement is involved, what is fundamentally a matter of health, and frequently a traumatizing emergency, begins to take the shape of a criminal investigation—meaning that people are subject to bedside interrogations, seizure of medical records, and all the other tools and tactics that have become a commonplace part of criminal investigations.

This can also include seizing people’s phones, tablets, and laptops to look at their communications, including texts, emails, social media messages, and browser history. None of the cases in our sample or those that have come since 2020 have included prospective law enforcement surveillance tactics like the use of data from menstrual tracker apps, reverse keyword search warrant, or geo-location data connecting people to an abortion clinic—indeed, the appeal of self-managed abortion for many is that it can take place in the privacy of one’s home. That these high-tech tactics have not been used yet is good news: There is still time to shift policy to keep people’s sensitive digital information (including medical records) out of the hands of law enforcement.

Dangers Ahead

From a legal perspective, the ability to keep people from being criminalized for ending pregnancies hangs on the lodestar principle that an act or omission a person undertakes that might affect the outcome of a pregnancy is not a crime. Thus, the greatest risks to pregnant individuals are laws or policies that change this fundamental principle or practices that make it irrelevant.

To the first point, as abortion opponents regroup and develop their own post-Roe strategies, it is important to be vigilant for radical proposals that strip existing protections from criminalization for pregnant individuals. This legislative session, lawmakers in Arkansas, Indiana, Oklahoma, and Arizona have proposed bills that would criminalize prompting a miscarriage as a homicide. Such bills have long been proposed by abortion opponents calling themselves “abolitionists” and typically do not gain traction in the statehouse. But we are no longer in typical times, and the lack of constitutional protection makes it critical that lawyers participate in the political process and work to ensure access to everyone.

To the second point, the more people become inured to the idea that abortion is “illegal,” the greater the confusion abortion seekers and others will experience. Misunderstandings of the law in this realm have serious consequences. When health care providers mistakenly believe that they are required to report “illegal” abortions to law enforcement, people become ensnared in criminal investigations with lasting consequences. When people are afraid that they will be arrested for seeking health care, they will avoid health systems when they need them most. As lawyers, we should seek to be precise and help people understand the changing legal landscape and what it means for abortion-seekers.

Available Resources

Abortion seekers are not alone. Anyone who is concerned that they might be criminalized, or who has been contacted by law enforcement, or who just wants to know what the law in their state means for their ability to seek an abortion can contact the Repro Legal Helpline. Our free helpline provides legal advice and connections to attorneys from our staff team and our growing network of lawyers across the country. And for people who are experiencing a criminal prosecution related to a pregnancy outcome presently, our Repro Legal Defense Fund can help lift the financial burdens of being subject to the criminal legal system, including bail, attorney’s fees, expert costs, and more. Our hope is that nobody ever needs the resources we provide. 

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Farah Diaz-Tello

Senior Counsel and Legal Director, If/When/How: Lawyering for Reproductive Justice

Farah Diaz-Tello is a human rights lawyer and senior counsel & legal director for If/When/How: Lawyering for Reproductive Justice. Her lawyering and advocacy focus on ensuring that people can experience the full range of pregnancy outcomes with dignity and without fear of coercion or punishment by the state or private actors.

Sara Ainsworth

Senior Legal and Policy Director, If/When/How: Lawyering for Reproductive Justice

Sara Ainsworth is senior legal & policy director at If/When/How, where she supports and oversees litigation and policy advocacy.