Speaking of Women's Rights: 05/16

Friday, May 6, 2016

Punishing Women for Abortion Hurts All Women

By Sara L. Ainsworth and Jill E. Adams
Members of the SIA Legal Team

Overzealous prosecutors, judges, lawmakers, and yes, even presidential candidates, have been threatening to undermine the abortion right by punishing women for having abortions. Let’s be honest, even when politicians say they don’t want to use the weight of the legal system to punish women for having abortions that isn’t the full story, because women are already being arrested and jailed for self-induced abortion and unintentional pregnancy loss.

The Self-Induced Abortion (SIA) Legal Team, of which Legal Voice is a member, has spent the last year exploring the criminalization of abortion, and we have found at least 17 arrests or prosecutions involving self-induced abortion. Several of those arrests, especially the most recent, were of women accused of using medication—the drug misoprostol—to terminate their own pregnancies.

Sweeping in Those Who Experience Unintended Pregnancy Loss

Of course, for every person who gets caught up in the legal system for an intended pregnancy loss, there will be another ensnared for a pregnancy loss that was not intended.

As the Guttmacher Institute reports, “The mere existence of medication abortion is providing some legal authorities reason to conduct fishing expeditions to go after not only women who have clearly terminated a pregnancy, but also women whom they suspect have done so.”

This idea—that people who terminate their own pregnancies should be arrested and jailed—also affects people who suffer a pregnancy loss or a poor birth outcome. In a tragic example, Melissa McMillen, a young woman in Washington State, gave birth unattended at home to a baby who was either stillborn or died immediately. Hemorrhaging and alone, having hidden the pregnancy from family and friends, she put the baby’s body in towels and did not call for help. None of this is, or should be, a crime in Washington—and yet, Melissa was convicted of felony murder and sentenced to two decades in prison. One of the things the prosecutor argued at Melissa’s trial was that she had considered an abortion during the pregnancy. So, ambivalence about a pregnancy—something countless pregnant people experience—was used to argue that Melissa was a murderer.

Two members of the SIA Legal Team, Legal Voice and National Advocates for Pregnant Women, along with the ACLU of Washington and the Birth Rights Bar Association, filed an amicus brief in this case, explaining that decision-making during pregnancy is constitutionally protected, and that to prosecute someone for the outcome of an unattended birth endangers all pregnant people. After all, childbirth sometimes happens in taxis (and now Ubers), on planes, and when the pregnant person is alone.

Impacts of Criminalizing Self-Induced Abortion

If the justice system is allowed to criminalize self-induced abortion, unattended childbirth, and pregnancy loss, we know who it’s going to hurt most: people of color, people living in poverty, and immigrants. The majority of people prosecuted in relation to their own pregnancies are women of color, who are also more likely than their white counterparts to suffer poor birth outcomes. Between worse birth outcomes, heightened exposure to state agents, and racist or xenophobic stereotyping, it's no surprise that immigrants, people of color, and those struggling to make ends meet will be under the greatest scrutiny and suffer the deepest impacts of this trend in criminalization.

But, in truth, this targeting of women who self-induce their abortions harms everyone by nullifying the right to abortion entirely for growing numbers of pregnant people in the U.S. A Texas Policy Evaluation Project report concluded that as many as 100,000 women in Texas have already attempted to end their own pregnancies outside the formal healthcare system. For decades now, global data have demonstrated that highly restrictive laws do not reduce the abortion rate, they simply relocate the site of abortion care from the clinic to the home.

The Real Face of Self-Induced Abortion

In a nation where abortion is a protected constitutional right, and caring and courageous abortion providers continue to work in the face of unrelenting opposition, why do some people end their own pregnancies? There are hundreds of lived experiences that may push someone away from the formal health care system or that may pull them toward self-directed care. With abortion clinics closing, women are traveling farther and paying more for abortions and attendant costs, like travel, overnight accommodations, and childcare. All told, securing an abortion can cost some half a month’s pay, which is prohibitively expensive for many families.

Resourceful women and their loved ones have and will continue to find ways to end pregnancies outside the formal healthcare system. While the thought of home abortion may conjure up gruesome images of pre-Roe coat hanger abortions, the current reality is one of safer, less invasive means. More often than not, women use traditional herbs or misoprostol, which is far safer and more effective than many self-induced abortion methods of the past.

Safe home abortion will be a positive experience for some, occurring in a private place through effective means while accompanied by a loved one. For others, particularly people living in poverty, immigrants, and people of color who are disproportionately arrested for pregnancy-related crimes, the self-induced abortion experience may be shrouded by the fear of jail or deportation.

A woman who cannot afford an abortion or access an abortion clinic may turn to the Internet to research less expensive alternatives to clinic-based care. Rather than accurate information about how to procure reliable medications, proper dosage, and likely side effects, her search might turn up headlines about Purvi Patel, Jennie Linn McCormack, Kenlissia Jones, and other women arrested and jailed for allegedly ending their own pregnancies. What is this not-so-hypothetical woman to do? She’s decided—for whatever reason—that it’s better for her not to have a child. She doesn’t have insurance coverage for an abortion, doesn’t have money to pay the costs out of pocket, and doesn’t want to go to prison for taking matters into her own hands. That’s why we created the SIA Legal Team—to expand access to reliable information about ending one’s pregnancy, and to halt criminalization of women who do so.

The Future We Envision

No one should face prison time for the outcome of a pregnancy—intended or unintended. Rather than arrest and jail people who have self-induced their abortions, we should work to make abortion more affordable, more accessible, and less stigmatized. Pregnant people deserve access to the full panoply of provider-directed and self-directed abortion care options, along with the freedom to choose the setting and method right for them―without fear of going broke or getting locked up.

Sara L. Ainsworth is Advocacy Director at Legal Voice; Jill E. Adams is Executive Director of the Center on Reproductive Rights and Justice and Chief Strategist for the SIA Legal Team, a consortium of organizations using law and policy tools to ensure people throughout the U.S. can end their own pregnancies outside of the formal health system with dignity and safe from the threat of arrest for themselves or anyone who assists them.

Photo courtesy of bekassine