If the Supreme Court issues a ruling that will allow states to ban abortion, as expected in the coming days, such a decision will raise new questions about how the authorities will enforce such bans and whether the anti-abortion movement will hold on to its public weight. . to protect abortion seekers themselves from prosecution.
What has been the pattern abroad in countries banning abortion, along with the United States’ own experience before Roe, shows a complicated and unequal enforcement landscape.
For years, as they fought to overthrow Roe v. Wade, leaders of the anti-abortion movement have stressed that prosecution should focus on abortion providers and others who facilitate the procedure, rather than the person seeking it. But critics of the movement point to examples of when the criminal justice system has already – with Roe still on the books – been turned against women whose pregnancies have been deliberately or unintentionally terminated.
In a 2018 case, a Mississippi woman who experienced a stillbirth, for example, was charged with second-degree murder after authorities obtained her phone data and found out she had been searching for abortion pills. (The case was later dropped after prosecutors looked into the evidence, including the use of a scientifically dubious test to allegedly determine if the fetus had been born alive.)
One major challenge abortion enemies will face if Roe falls is the growing use of drug abortion, which allows women to cope with their own abortions in two-pill regimens without the help of the kind of doctor who would conventionally be prosecuted under an abortion ban.
Because pregnancies that end in a natural abortion are often indistinguishable from those that end with a pill, it is possible that women’s private data and the information they share with their medical staff will be armed by prosecutors. Although the woman is not herself criminally liable, she may still be dragged through the law enforcement process as part of the prosecution’s efforts to investigate whether her pregnancy was terminated illegally.
“What I found in my research is that women were actually punished, even though, you know, almost none of them are prosecuted and imprisoned for having abortions,” said Leslie Reagan, professor of history at the University of Illinois Urbana-Champaign. and author. of “When Abortion Was a Crime”. “It’s through enforcement methods: interrogating women who sought emergency services after having an abortion or trying to induce their own.”
Whether a case should be brought under a state abortion restriction will ultimately be a decision for the local prosecutor, and the promise from some district attorneys in Democratic localities not to prosecute abortion crimes has prompted red states to explore other mechanisms to enforce bans.
However, in places where law enforcement officials seek to enforce abortion bans, medical staff providing treatment to women whose pregnancies have ended may also end up being a source of information for law enforcement agencies.
In El Salvador, a country with an extremely aggressive approach to enforcing its abortion ban, officials are being sent to hospitals to emphasize to medical staff their obligation to report suspicion that a patient has intentionally terminated her pregnancy, according to Michelle Oberman, a Santa Clara University School of Law professor and author of “Her Body, Our Laws: On the Frontlines of the Abortion War from El Salvador to Oklahoma.”
Doctors are told that “if they do not report these women, they themselves may be subject to fines and other sanctions,” Oberman said.
In the U.S. pre-Roe era, women seeking medical attention after abortions were subjected to interrogations, Reagan said, including threats that “we will not provide medical care, the medical care you urgently need” unless they collaborated with the studies.
Even now, medical care that women receive for pregnancies that have ended can lead to law enforcement getting involved, according to Dana Sussman, the acting chief executive of the National Advocates for Pregnant Women. Sussman’s organization provides defense attorneys and other resources to individuals facing charges or investigations related to pregnancy and its outcomes. The organization has documented 1,700 arrests, prosecutions, detentions or forced medical interventions between 1973 and 2020 on women related to pregnancy or pregnancy outcomes, although the majority of these cases do not involve pregnancy loss or miscarriage.
If Roe is turned around, Sussman said, “I think there will potentially be a lot more cooperation between health care providers and the police.”
The Health Insurance Portability and Accountability Act – a 1996 law, also known as the HIPAA, that sets privacy standards for the protection of patients’ personal medical information – has exceptions for law enforcement purposes, Sussman noted. “As we expand the ways in which criminal law applies in these contexts, HIPAA protection will become more limited.”
Another common tactic that the organization has seen in its work is law enforcement, which uses women’s personal data to find evidence.
“When you have someone who turns out to be pregnant and the police or the prosecution are trying to build a case that there was a self-inflicted abortion,” Sussman told CNN, “what they want to look at is one’s digital footprint. . who they communicated with and when and about what, what they were looking for, for purchases they made, credit card bills. ”
She predicted that this kind of digital evidence “will be the thing that prosecutors need to distinguish if they want to try to distinguish between a miscarriage and a self-directed abortion.”
In the Mississippi case, investigators secured an order to search the phone of Latice Fisher, a black woman who had experienced a stillbirth in her home in 2017. To raise the charges, they pointed to data that showed she had searched for abortion pills in the past. in his home. pregnancy (there is no way to medically test whether medication abortion medication is in the woman’s system after an abortion or stillbirth, as the substances are usually metabolised faster than the time it takes for the fetus to expel). To build the case against Fisher, investigators also relied on a test known as the “lung flow test,” a controversial method of investigating allegations of infanticide dating back to the 17th century that have been discredited by many medical experts.
Fisher’s lawyers pushed back on the use of the “float test.” After reviewing questions about the reliability of this method, as well as other allegations about Fisher that they found to be unconfirmed, prosecutors dropped the original charge. When they represented the case before the grand jury with more context around the evidence, the grand jury refused to raise new charges against Fisher.
Laurie Bertram Roberts, co-founder of the Mississippi Reproductive Freedom Fund, which helped with Fisher’s defense, equated investigators’ use of Fisher’s Internet search with a “thought crime.”
“Let’s say, when I’m two months old, I’m considering having an abortion, and I’m looking for things. And then I decide not to, and then I’m having an abortion after four and a half months, ‘ Roberts to CNN. “That’s the risk, right? Many people think about having an abortion and then do not. ”
Legal and historical experts in abortion bans also expect that the bulk of enforcement will fall on marginalized communities, which are already facing the bulk of police work – and some compare it to the war on drugs.
“The likelihood of being caught in this police network will be higher for people of color and for people with lower incomes,” Reagan said.
Oberman said that in her study of El Salvador’s extremely robust enforcement approach, there were still only about 10 convictions a year, given the estimated 30,000 abortions that take place annually in the country. She said a woman’s background is what the authorities in El Salvador will look at to see if her pregnancy ended naturally or was intentionally terminated.
“Doctors in these cases tend to suspect patients whose history suggests reasons to want an abortion,” she said, such as rape victims, single mothers or those living in gang-infested areas where their personal safety is at risk. “The cases that are reported are those that are directed at the poorest and most marginalized people in society. And the cases that the prosecutors go on with are similarly the ones where they can tell a story about motive.”
Anti-abortion activists say they have been consistent in their approach to not directing criminal anti-abortion laws against the woman who gets an abortion, and that the directive will remain at the forefront if Roe is overthrown.
“I know that across the board, with very few exceptions, we have seen a real commitment from lawmakers to make it clear that the woman cannot be prosecuted,” said Katie Glenn, government attorney for the anti-abortion group. Americans United for Life.
Jason Rapert, an Oklahoma lawmaker who sponsored a “triggering” abortion ban that would take effect in the state if Roe is overthrown, rejected the idea that women would be targeted, calling the concerns “a new false flag that will be thrown up just to raise an issue. ”
Asked how investigators will determine if an abortion was natural or a medically induced abortion, Rapert said, “You’re also talking about the person’s honesty.
“And I believe people will be able to distinguish between what is an abortion and what is not,” Rapert, who is also the founder and president of the National Association of Christian Lawmakers, told CNN.
While it will be up to lawmakers to write the anti-abortion laws, which they hope will end the procedure, it will ultimately be up to local prosecutors to carry out those laws.
A Texas Starr County prosecutor attracted national attention this year for trying to charge a woman with murder for her self-inflicted abortion, despite the exception in the relevant Texas law for “behavior committed by the mother of the unborn child.” Prosecutors said it would drop the charges after a review of Texas law.
“In Starr County, the prosecutor initially misunderstood and applied the law and those who originally put the charges together,” said John Seago, Texas’ legislative director for the right to life. “And so it is possible, but it is possible with any crime.”