2. KNOW THE LEGAL RISKS WHEN SEEKING AN ABORTION CAN LAND YOU IN JAIL.
the illusion that anti-abortion lawmakers wouldn’t try to criminalize abortion seekers was shattered this year with the introduction of a Louisiana bill that would have allowed prosecutors to bring murder charges against them (the bill was revamped and that section was dropped). Though most abortion restrictions don’t explicitly penalize pregnant people, Dana Sussman, acting executive director of the National Advocates for Pregnant Women, says the organization has documented
“over 1,700 cases from 1973 to 2020 that criminalize pregnant people” for a number of reasons, from selfmanaged abortion to stillbirth to suspected drug use. Prosecutors have also used feticide and child abuse or neglect statutes to charge women who ended their pregnancies. In 2015, Purvi Patel was tried on both those counts in Indiana and sentenced to 20 years in prison after allegedly self-managing her abortion (her conviction was eventually overturned).
A prosecutor doesn’t even have to point to a specific statute to arrest someone suspected of aborting: This year, Lizelle Herrera was charged with murder in Texas, despite state law prohibiting pregnant people from being charged with injury to their own fetuses (the charges were later dropped). “Even though most laws say, ‘Well, we’re only criminalizing providers,’ a really aggressive prosecutor might still try to get women under that,” says Sussman.
Right now, only Nevada, Idaho, South Carolina, and Oklahoma have laws that outlaw self-managed abortions, but that could change. “Legislatures are going to find themselves up against a reality that today, illegal abortion is done by procuring medication,” says Michelle Oberman, a law professor at
Santa Clara University. “There’s no doctor to prosecute. It’s not a ’50s-style sting operation outside the clandestine abortion clinic.”
Still, there are steps you can take to protect yourself from legal scrutiny. First, be careful who you talk to about ending a pregnancy.
Even texting a trusted friend about your abortion could create a paper trail you will want to avoid if you live in a restricted state (see p. 43 for more on protecting your digital privacy). Also, be cautious when talking to medical-care providers.
Forty-six states and D.C. require hospitals, physicians, and facilities providing abortions to submit routine confidential reports to the state about the abortions they perform. No laws currently require providers to report self-managed abortions, but that’s not to say it doesn’t happen; in the Patel and Herrera cases, hospital staff contacted police. Remember that miscarriage and medication abortions look identical in a clinical setting as long as the pills have dissolved.
Abortion seekers should be aware of organizations they can ask for help. If you’re looking for legal information about selfmanaging an abortion, you can contact the If/When/How Repro Legal help-line (844-868-2812)
and someone will get back to you within 48 hours—sooner if it’s an emergency. If you’re being investigated, have been arrested, or are otherwise prosecuted for allegedly selfmanaging your abortion, contact the Repro Legal Defense Fund (reprolegaldefensefund.org).
If it takes your case, the group can pay for bail and legal expenses, including attorney fees, court costs, bail alternatives, court programming, and more. “We support people to get the resources they need to get out of jail and fight back with a strong defense,” says Rafa Kidvai, the fund’s director.