Should Abortion Really Make Us Criminals?

06.27.2019 Arts & Culture
Ann Lewis
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With the slew of abortion bans that have been voted upon in different states throughout the country in the last month, the slippery slope that American women and trans men now find themselves on when it comes to the legal ramifications of abortion is ever-present. All of these bans are currently being challenged with lawsuits filed by Planned Parenthood and the American Civil Liberties Union (ACLU) — which means they are not effectively law, and abortion is still technically legal in all 50 states

While this is tentatively good news, what is not news is that pregnant people have significantly reduced access to abortion health care through conservative legislation due to targeted restrictions on abortion providers or TRAP laws. Some prevailing TRAP laws include widening hallways in clinics by a few inches and requiring providers to have admitting privileges at local hospitals. These laws are powerfully effective in limiting access because many small clinics can’t afford the medically unnecessary changes and are forced to close. 

For example, there is currently only one clinic that provides abortions in each of the following states: North Dakota, South Dakota, Mississippi, and Louisiana. In Texas (a state with 1.5 million women and trans people of reproductive age) there are only 17 clinics that offer abortion with wait times up to 20 days long. By contrast, in 2011, there were 62 providers — that’s a 73% decrease in clinics in just eight years. Georgia is down 50% within the last decade to 17 clinics which mostly serve urban areas. 

These laws don’t trap abortion providers, they trap women and trans folks into having unwanted pregnancies or into seeking unsafe and illegal abortions — abortions that can subsequently land them in prison.

This lack of access throughout the nation’s abortion deserts is already responsible for several women receiving jail time and felony convictions for administering their own abortions, or in one Pennsylvania woman’s case, securing abortion medication on the internet for her daughter. Jenifer Whalen received 9-18 months in prison in 2014 for three misdemeanors: assault, endangering the welfare of a child, dispensing drugs without being a pharmacist, and a felony charge for “offering medical consultation about abortion without a medical license.” Her reasoning for ordering the pills online and overseeing her daughter’s care? They couldn’t afford the journey to an abortion clinic and the 24-hour required waiting period would be too long. She also didn’t realize it was illegal to obtain the medication without a prescription.

In 2011, Jennie Linn McCormack of Idaho was charged with a criminal felony for performing her own abortion due to a 1972 law that outdates the landmark abortion rights case Roe v. Wade, as well as the drug many people use to induce miscarriages called Mifepristone which came onto the American market in 2000. While she eventually evaded a five-year prison term because her lawyer challenged that this law was unconstitutional (and won), she explained that the only reason she did it herself was because she couldn’t afford the procedure or to have a fourth child on an income of $200-$250 a month.  

A more famous case is that of Purvi Patel. In 2015 she was sentenced to 20 years in prison for feticide, the only known example of a woman in the US being charged with the crime. Patel was accused of self-inducing an abortion though no drugs were found in her system after she went to the hospital for excessive bleeding. She needed surgery to remove the placenta, and when she woke up, the police were at her bedside. Court documents state that she took the medication and gave birth to a 1.5-pound baby boy who died shortly after delivery. They charged her with both feticide and child neglect. After spending over a year in prison, Indiana Appeals Court Judge Terry A. Crone threw out the feticide charge and reduced her child neglect charge. The judge stated, “The legislature did not intend for the feticide statute to apply to illegal abortions or to be used to prosecute women for their own abortions.” 

The interpretation of the law regarding intent is entirely subjective… and that’s not a good thing.

All of these cases criminalized women for performing their own abortions — with drugs they had ordered online — when they didn’t have the physical or financial access or awareness to get to a clinic. A study from the University of Texas in 2015 states that over 100,000 Texan women and trans men have administered their own abortions. That’s over 1% of the reproductive population, with the cross-section being made up of mostly Latinx and people with barriers to reproductive health care access.

If TRAP laws continue to remove people’s access to abortion-related health care, more and more people will be charged with these sorts of crimes. As our legislative bodies around the country continue to wield their powers against our right to choose, we have to recognize that this slippery slope of criminalization will only get steeper, and more women and trans folx — especially of color — will be criminalized for attempting to or successfully terminating their own pregnancies at home. These feticide laws were “intended” to protect against “nefarious abortion providers” and abusive partners — but were is the line drawn when the pregnant person performs his/her own abortion? Are they now the provider? 

With receding access to abortion care, and potentially a reversal on Roe v. Wade, we will likely see a significant increase in the prosecution and imprisonment of women and trans men for seeking an abortion when the law prohibits legal and safe access.

If you or someone you know needs confidential help in obtaining abortion-related health care the website I Need An A contains reliable information on providers in your area. 

Ann Lewis is an artist, activist, and writer based in Detroit. Her artwork reflects upon social and environmental justice issues.

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