Roe Remains for Now...Will It Be Enough?

The U.S. Supreme Court’s most recent ruling concerning abortion rights, June Medical Services v. Russo, was a relief to advocates for access to abortion care. In a moment when states with Republican-controlled legislatures are racing to the bottom to become the first state without an abortion clinic, the court affirmed the central premise of Planned Parenthood v. Casey that states may not impose an undue burden on the right to seek an abortion prior to viability. Legal precedents, however, are almost necessarily backward-facing, with victories lagging behind the threats. June Medical Services was a win, but the terms of the game have already moved onto a different playing field. 

Roe at Risk

June Medical Services was a case that advocates on all sides of the abortion debate had been waiting for since November 9, 2016. Despite the Supreme Court’s putative nonpartisanism in the mythos of U.S. politics, the constitutional protections for abortion rights and the continued validity of Roe v. Wade have been undercurrents of elections for decades. The stakes were heightened in 2016 by the sudden passing of abortion foe Justice Antonin Scalia and the acrimonious fight in the Republican-controlled Senate to prevent President Obama from appointing a successor. In the run-up to the 2016 presidential election, the Trump campaign promised a Supreme Court that would consign Roe to the “ash heap of history” and at least momentarily endorsed the idea of “some kind of punishment” for people who have abortions. And within two years, the administration managed to add two justices vetted for their conservative bona fides. Advocates for reproductive freedom knew the challenge would come; it was simply a matter of which of more than 200 abortion restrictions enacted since 2016 would make it before the Court first.

The Supreme Court’s grant of certiorari in the June Medical Services case was particularly worrying: The court agreed to review a Louisiana statute nearly identical in its purpose, effect, and even its wording to the Texas statute at issue in Whole Woman’s Health v. Hellerstedt. These similarities raised the possibility that the court might backtrack on the holding of Whole Woman’s Health. This threatened to undermine the seemingly unremarkable proposition that state restrictions upon abortion procedures passed in the name of protecting the health of people seeking abortions must, in fact, do so, and not simply make it difficult or impossible to access abortion care. Concern about the rule that might emerge from the case was compounded by issues raised at the 11th hour questioning abortion providers’ standing on behalf of their patients. With any number of ways that the Court might, subtly or directly, unravel the constitutional jurisprudence undergirding abortion rights, the case seemed to offer little to gain and much to lose.

The decision that was issued was more in keeping with the slow burn of abortion restrictions that characterized the first 40 years after Roe than the more recent scorched earth approach taken by lawmakers in states like Alabama, Georgia, and Tennessee that jockey for position of most abortion-hostile. The opinion was a plurality, with Chief Justice Roberts’s deciding vote cast not in support of people’s ability to self-determine their reproductive lives, but of stare decisis, the doctrine that favors consistency with prior rulings.

Considering the directions the case could have taken—a broader endorsement of Justice Thomas’s radically retrograde dissent, for starters—the decision brought a measure of relief. The victory is a testament to the formidable efforts of the legal advocates, abortion providers, and community organizations fighting to ensure that reproductive rights are more than empty promises. And yet, the idea that it is a victory to maintain a status quo that already leaves so many behind shows just how dire the landscape is for reproductive freedom. Victory in June Medical Services means that Louisiana gets to continue to have three abortion clinics instead of just one to provide approximately 10,000 abortion procedures annually to a population of 1 million women of reproductive age in the state. Approximately three in four women live in a parish with no abortion provider. And in a state with one of the highest rates of poverty in the nation, people relying on public health care programs must pay out of pocket for abortions unless the pregnancy is a result of rape or incest or threatens the pregnant person’s life.

In short, Roe and Casey will stand, for now. But the terms of the debate are changing rapidly, and the stakes are higher than they have ever been. As clinic-based abortions become more difficult to obtain, people are more likely to turn to end their own pregnancies. But unlike in the days before Roe, the risk is no longer the “back alley,” but a jail cell as prosecutors look for ways to punish people for reproductive self-care.

The Changing Risks of Self-Managed Abortion

Concerns about self-managed abortion have been a subtext to much of our abortion jurisprudence. This is evident from the weight that the court in Roe v. Wade gave to the perspective of the American Medical Association, as well as Justice Blackmun’s private papers. The primary concern at the time was that people who lacked access to legal abortions provided by physicians would seek them elsewhere, potentially from unsafe providers or using dangerous means. At the time, people with the knowledge and access were sometimes able to seek illegal, but safe, abortions from physicians who quietly provided them, or from trained laypeople like the Jane Collective. Others were not so lucky and were injured or died trying to end their pregnancies. The possibility of arrest for a provider (or, rarely, a woman) left abortion stigmatized, in the shadows, and out of reach for most people who needed it. 

Fortunately, the legalization of abortion across the country has permitted great leaps forward in reproductive health technology. Medications that cause abortions—mifepristone and misoprostol—have been safely used by millions of people in the United States and around the world and are considered life-saving medications by the World Health Organization. Abortion pills have increased access in remote parts of the country, allowing people to get abortions from their local clinics and even through the mail, even when there is no physician available. Evidence from parts of the world where health care access is even more limited shows that people can safely use the medications on their own, provided that they have accurate information about how to use the medications and are able to seek medical care in the event of a complication. 

Perversely, while abortion has become safer than ever medically, it has become riskier legally in the United States: Since the year 2000, at least 21 people in this country have been arrested for ending a pregnancy on their own or helping a loved one who did so. The majority of them have not been charged with the antiquated, unconstitutional criminal bans on ending one’s own pregnancy—mostly misdemeanors—still lingering on the books in six states. Rather, they have been charged with felonies like concealment of a birth, practicing pharmacy without a license, or even homicide. The label of criminality, even if the charges are unlawful or ultimately dropped, is enough to subject a person to ostracism in their community and keep them away from seeking medical care if they need it. This is why medical experts like the American Medical Association, the American College of Obstetricians and Gynecologists, and Physicians for Reproductive Health all oppose the criminalization of people who self-manage their abortions.

But as abortion opponents set their sights on a more full-frontal attack on Roe v. Wade by creating new sets of rights for fetuses, the criminalization of people who self-manage their abortions is just the beginning. Opponents seek to create a legal landscape in which the state can act on behalf of fetuses, exercising near-total control over the people who carry them.

Criminalization as Reproductive Control of Abortion . . . and Beyond

In January of 2017, just six months after the Supreme Court struck down the draconian restrictions imposed by Texas’s H.B. 2, State Representative Tony Tinderholt introduced a bill into the Texas legislature that would have made it a capital offense to have an abortion. His bill, styled the “Abolition of Abortion in Texas Act,” granted full rights of personhood to an embryo “from the moment of fertilization upon the fusion of the human spermatozoon with a human ovum.” It sought to remove provisions of Texas’s 2003 “Prenatal Protection Act” that prohibit charges against pregnant individuals and instead would have explicitly permitted the imposition of such charges. This, Tinderholt told media, would make people more “personally responsible” with decisions about sex. By erasing the distinction between a child in being and a fetus in utero, the amended law would additionally criminalize any miscarriage attributable to an act or omission of a pregnant person and even any act that merely risked harm to a fetus.

Usually, such a bill would never see the light of day, but the legislative chaos following the 2016 election was different. When the anti-choice republican chair of the Texas House Committee on Judiciary and Civil Jurisprudence refused to calendar the bill for a hearing, he received death threats. The bill was brought to a hearing in which 446 witnesses spoke in favor of criminalizing people who have abortions. Some were blunt: The head of West Texans for Life told the committee, “A woman who has committed murder should be charged with murder.”

Fortunately, Tinderholt’s bill died, but the possibility that Texas’s laws outlawing harm to fetuses could be used against pregnant people isn’t hypothetical. In fact, just weeks after the enactment of the Prenatal Protection Act (the very law Tinderholt’s bill sought to amend), a Panhandle district attorney sent a letter to all physicians in the county instructing them to report to law enforcement pregnant patients who used drugs. After physicians and lawmakers sounded the alarm, then Attorney General Greg Abbott issued an opinion stating that this interpretation of the Prenatal Protection Act was erroneous. Nevertheless, a 2014 investigation by Rewire News uncovered a half-dozen cases in which west Texas prosecutors disregarded the law to file criminal child abuse charges against women who gave birth to babies who tested positive for controlled substances.

In fact, these Texas cases are just the tip of the iceberg. There have been more than 1,200 women arrested across the United States based on their pregnancy outcomes—including miscarriages, stillbirths, abortions, or neonatal losses—since Roe was decided. There are likely more, and the fundamental legal principles that protect them are being eroded by an increasing trend of ascribing a legal “personhood” to a fetus.

New Fetal “Victims” of Pregnant “Perpetrators”

In 2016, a South Dakota woman named Samantha Flute gave birth to a baby boy who died several days after birth. At the time of the delivery, she tested positive for controlled substances. Because Flute is a Native American and gave birth in Indian Country, she was deemed to be under federal jurisdiction and was charged with involuntary manslaughter under the federal code for “ingesting prescribed and over-the-counter medicines in a grossly negligent manner.” She challenged the charges on the grounds that there is no basis in federal law for charging people with a crime based on conditions or circumstances during their pregnancies. Her argument pointed to the fact that the federal statute most clearly aimed at preventing harm to fetuses in utero, the Unborn Victims of Violence Act, explicitly prohibits charges against pregnant individuals with respect to their own pregnancies. The U.S. District Court for the District of South Dakota, Northern Division, dismissed the indictment, finding that a person who experiences a perinatal loss is not within the class of defendants Congress intended to punish for harm to fetuses. The court additionally noted that, because Flute was charged based on having ingested prescribed medications, to permit the prosecution to move forward would create a “slippery slope” that would implicate people experiencing a variety of health concerns, such as cancer in need of chemotherapy, or those who ingest other legal substances that might affect fetal development, like alcohol.

This legal outcome is not surprising; in fact, it is consistent with the findings of virtually every state court that has examined this issue. The majority of these cases have involved allegations that the pregnant individual used a drug and that the drug had some effect on the fetus, either causing a miscarriage, neonatal death, or symptoms after birth related to in-utero substance exposure. The broad consensus across U.S. jurisdictions for nearly a half-century has been that, whatever animus and stigma society may hold toward pregnant people whose acts or omissions might have affected a fetus, neither courts nor prosecutors have the authority to punish them. With the notable exceptions of Alabama and South Carolina, courts have recognized that only the legislature has the power to declare actions or omissions effecting pregnancy a crime.

In light of this firmly established principle of law, it was shocking that the federal prosecutor appealed the dismissal of Flute’s case. The Eighth Circuit reinstated the indictment, ruling that the protections from criminal liability only apply to individuals who suffer perinatal loss in utero. Flute continues to fight the charges, but this stunning reversal potentially makes any neonatal loss subject of a criminal investigation. Unfortunately, the cruel and counterproductive policy consequences of such a rule are on display in which pregnant bodies have become a new front for the War on Drugs.

Testing Grounds for Fetal Rights

Thus far, only Tennessee has passed a law explicitly permitting criminalization of pregnancy outcomes. A short-lived amendment to that state’s fetal assault laws authorized misdemeanor assault charges for women who gave birth to babies who exhibited symptoms of Neonatal Abstinence Syndrome, a temporary side effect of prenatal opioid exposure. The 2014 law included a rare sunset provision, and its reauthorization was rejected amid outcry from medical experts, who emphasized the devastating health consequences, including pregnant people fleeing the state, giving birth in hiding, and avoiding prenatal care. Advocates also pointed to pervasive reports of misuse of the law, including against pregnant women who failed to wear a seatbelt or who attempted to end a pregnancy after being unable to obtain an abortion. At the time of sunset, 124 women had been prosecuted under the law.

Prosecutors and courts in Alabama have taken a different approach, short- circuiting the legislative process and making the courts a testing ground for such prosecutions. In a pair of opinions transparent in their aim of challenging Roe, the Alabama Supreme Court reinterpreted a 2006 child endangerment law aimed at punishing parents who brought children into meth labs so as to apply it to anyone who used a controlled substance at any point in pregnancy. Felony charges applied regardless of whether the substance was prescribed, or whether it had any effect on the pregnancy whatsoever. More than 500 Alabama women have been prosecuted, some sentenced to decades in prison.

In 2018, Alabama went a step further, passing a ballot measure that creates legal status for fetuses and embryos under the state constitution, opening the door to increasingly bizarre and alarming consequences. For instance, a man relied on that provision to sue the Alabama Women’s Center for Reproductive Alternatives on behalf of a six-week gestation embryo. He filed the ultimately unsuccessful wrongful death suit against the clinic on the basis that his ex-girlfriend had an abortion there in 2017. The lawsuit did not name the young woman, who was 16 at the time she sought the abortion. But given recent cases, like actress Sofia Vergara’s costly “custody battle” with her ex-fiancé over frozen embryos, one could easily envision such a lawsuit being used as a manipulation tactic by a vindictive partner.

Soon after passage of the ballot measure, a woman named Marshae Jones was charged with manslaughter after she suffered a miscarriage after being shot in the abdomen by another woman during an altercation. At the time of her indictment, a local law enforcement official commented that “the only true victim in this was the unborn baby.” Charges were dropped “in the interest of justice” after the case drew national outrage, with little public acknowledgement that Alabama’s fetal victim provision actually prohibits charges against pregnant people.

An Uncertain Future for Reproductive Freedom

The effect of this trend of punishing pregnancy outcomes on the future of federal abortion jurisprudence is yet unclear. One possible future is a polarized patchwork of laws, such that whether a person is charged with a crime for a miscarriage or abortion may be a matter of geography. Some states have already begun “SCOTUS-proofing” their abortion laws: Vermont and Illinois both recently passed protections for abortion rights including statements that people will not be criminalized for pregnancy outcomes. But this begs the question of whether this is a matter of “abortion rights” as conceived of by our jurisprudence, when what is at stake is so much greater than the ability to seek a medical procedure from a health care provider in a legally sanctioned facility.

The privacy-based construction of the right to seek an abortion was pivotal to ensuring people’s ability to decide if, when, and how to create and sustain families on their own terms. But with the passage of time, the Roe line of cases has become a white elephant: costly to maintain for a benefit that seems to dwindle with each passing legislative session. The notion that the law cannot unduly burden the right to end a pregnancy barely begins to touch the surface of the ways the state might exercise control over someone because of their pregnancy. What Roe didn’t say—perhaps couldn’t have said when it was decided—was that a person’s ability to retain their full rights at every point in pregnancy is fundamental to their status as equal persons under the law. It’s time for legal advocates to think beyond the status quo and create a legal landscape in which people can enjoy their full rights regardless of what happens to Roe.

Farah Diaz-Tello is a human rights lawyer and senior counsel 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. She lives in New York, but her heart is in Texas forever.