What has been the model abroad in countries that ban abortion, along with the United States’ own experience before Roe, presents a complex and unequal landscape of implementation.
For years, as they fought to overturn Rowe v. Wade, anti-abortion leaders stressed that prosecutions should focus on abortion providers and others who facilitate the procedure, not on the person seeking it. But critics of the movement cite examples where the criminal justice system has already – with Rowe still in the books – turned against women whose pregnancies have been intentionally or unintentionally terminated.
In one case in 2018, for example, a Mississippi woman who survived a stillbirth was charged with second-degree murder after authorities received her phone details and found she was looking for abortion pills. (The case was later dropped after prosecutors took a closer look at the evidence, including using a scientifically questionable test to determine if the fetus was born alive.)
Because pregnancies that end in natural miscarriage are often indistinguishable from those terminated with a pill, women’s personal data and the information they share with their medical staff may be armed by prosecutors. Even if the woman herself is not criminally liable, she can still be dragged through the law enforcement process as part of the prosecution’s efforts to investigate whether her pregnancy was illegally terminated.
“What I found in my research is that women have indeed been punished, even if you know that almost none of them have been persecuted and imprisoned for abortion,” said Leslie Reagan, a history professor at the University of Illinois at Urbana. Champaign and author. from “When abortion was a crime.” “It’s through enforcement methods: questioning women who have sought emergency care after an abortion or have tried to provoke their own.”
How abortion suspicions can be investigated
Whether to sue under state abortion restrictions will ultimately be the decision of the local prosecutor, and the promise of some democratically-minded district attorneys not to prosecute abortion-related crimes has prompted the Red States to explore other mechanisms. to enforce prohibitions.
But in places where law enforcement officials seek to ban abortions, medical staff who provide treatment to women whose pregnancies have ended can also be a source of information for law enforcement officials.
In El Salvador, a country with an extremely aggressive approach to enforcing its abortion ban, government officials have been sent to hospitals to urge medical staff to report suspicions that a patient has intentionally terminated her pregnancy, according to Michelle Oberman, a professor at University of Santa Clara Law School and author of “Her Body, Our Laws: On the Frontline of the Abortion War from El Salvador to Oklahoma.”
Doctors are being told that “if these women are not reported, they could face fines and other penalties,” Oberman said.
In the pre-Roe era, women in the United States who sought medical help after an abortion faced interrogation, Reagan said, including threats that “we will not provide medical care, medical care you need urgently, urgently.” if they do not cooperate in the investigations.
Even now, the medical care women receive for terminated pregnancies can lead to law enforcement intervention, according to Dana Sussman, acting executive director of the National Advocates for Pregnant Women. Sussman’s organization provides advocates and other resources for people facing accusations 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 most of these cases do not involve loss of pregnancy or abortion.
If Roe is reversed, Sussman said: “I think there will potentially be a lot more cooperation between healthcare providers and the police.”
The Health Insurance Portability and Accountability Act – a 1996 law, also known as the HIPAA, which sets standards for confidentiality to protect patients’ personal medical information – has exceptions for law enforcement purposes, Susman said. “As we expand the ways in which criminal law is applied in these contexts, HIPAA’s protections will be more limited.”
Another common tactic the organization has seen in its work is law enforcement to use women’s personal data to find evidence.
“When you have someone posing as a pregnant woman and the police or the prosecution try to build a case of a miscarriage,” Susman told CNN, “what they’re going to look at is the digital footprint of a person … who they’re with.” talked about when and for what, what they were looking for, the purchases they made, credit card bills. ”
She predicts that this kind of digital evidence “will be what prosecutors will need to make that distinction if they are to try to distinguish between miscarriage and self-administered abortion.”
In the Mississippi case, investigators received a search warrant for the phone of Latis Fisher, a black woman who had a stillbirth at her home in 2017. To raise charges, they cited data showing she was looking for abortion pills. -early in it. pregnancy (there is no way to check medically whether abortion drugs are in a woman’s body after a miscarriage or stillbirth, as drugs are usually metabolized faster than the time it takes to expel the fetus). To build the case against Fisher, investigators also relied on a test known as the Lung Swimming Test, a controversial 17th-century method of investigating child murder allegations that has been discredited by many medical experts.
Fisher’s lawyers rejected the use of the “sailing test”. After prosecutors reviewed the reliability of the method, as well as other allegations about Fisher that they found unsubstantiated, they withdrew the original indictment. When they presented the case to 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 protect Fisher, equated investigators with using Fisher’s Internet search as a “mental crime.”
“Let’s just say that every two months I’m thinking of having an abortion and I’m looking for things. And then I decide not to do it, and then I have a miscarriage at four and a half months, “Roberts told CNN. “That’s the risk, isn’t it? A lot of people think about abortion and then they don’t.”
Who will be prosecuted
Legal and historical experts on abortion bans also expect that most of the implementation will fall on marginalized communities, which already face the burden of the police – some comparing it to the war on drugs.
“They’re more likely to be caught in this police network for colored people and people on lower incomes,” Reagan said.
Oberman said that in her study of El Salvador’s extremely stable approach to law enforcement, there are still only about 10 convictions a year, in the face of the approximately 30,000 abortions that occur in the country each year. She said the woman’s background is what the authorities in El Salvador will look into to find out if her pregnancy ended naturally or was intentionally terminated.
“Doctors in these cases tend to suspect patients whose history suggests a reason to want an abortion,” she said, such as rape victims, single mothers or those living in gang-filled areas where their personal safety is at stake. . “The reported cases are those against the poorest and most marginalized people in society. And the cases in which prosecutors continue are similarly those in which they can tell a story about the motives.”
Local prosecutors who exceed the law
Anti-abortion activists say they have been consistent in their approach of not targeting anti-abortion laws against the woman who had an abortion, and that the directive will remain in the forefront if Rowe is repealed.
“I know we’ve seen, almost everywhere, with very few exceptions, a real commitment from lawmakers to make it clear that a woman can’t be persecuted,” said Katie Glenn, government adviser to the anti-abortion group. for life.
Oklahoma MP Jason Rapert, who is sponsoring an abortion ban that will take effect in the state if Rowe is lifted, dismissed the idea that women would be targeted, calling concerns “a new fake flag raised just to raise the issue . ”
Asked how investigators would determine whether a miscarriage was natural or caused by medication, Rapert said: “You are also talking about human honesty.
“And I believe that people will be able to tell what is miscarriage and what is not,” Rapert, who is also the founder and president of the National Association of Christian Lawmakers, told CNN.
Although lawmakers will have to write anti-abortion laws that they hope will end the process, the implementation of those laws will ultimately fall on local prosecutors.
A Texas County Attorney has drawn national attention this year to an attempt to charge a woman with murder for her self-inflicted abortion, despite an exception in the relevant Texas law on “conduct committed by the mother of the unborn child.” Prosecutors said they dropped the charges after a review of the law in Texas.
“In Star County, the prosecutor and those who initially filed the charges initially misunderstood and misapplied the law,” said John Sigo, Texas’s director of law for the Right to Life. “And it’s possible, but it’s possible with …
Add Comment