For years, as they fought to overthrow Roe against Wade, the leaders of the anti-abortion movement stressed that the persecution should focus on the abortion providers and others who facilitate the process, and not on the person seeking it. But critics of the movement point to examples when the criminal justice system has already – with Roe still in the books – turned to women whose pregnancies have been intentionally or unintentionally terminated. In a 2018 case, for example, a Mississippi woman who was stillborn was charged with second-degree murder after authorities obtained her phone data and found that she had sought abortion pills. (The case was later dropped after prosecutors looked more closely at the evidence, including using a scientifically questionable test to determine if the fetus was born alive.) Because pregnancies that end in miscarriage are often indistinguishable from those that end in a pill, it is likely that women’s personal data and information shared with their medical staff will be taken up by prosecutors. Even if the woman herself is not criminally liable, she may be drawn into the law enforcement process as part of prosecutors’ efforts to investigate whether her pregnancy was terminated illegally. “What I found in my research is that women were indeed punished, even though, you know, almost none of them are prosecuted or imprisoned for abortion,” said Leslie Reagan, a history professor at the University of Illinois Urbana-Champaign and author. of “When abortion was a crime.” “This is done through enforcement methods: interrogating women who sought emergency services after an abortion or trying to provoke their own.”
How abortion suspicions could be investigated
Whether a case under state abortion restriction will be a final decision for the local prosecutor, and the promise of some prosecutors in areas with a democratic tendency not to prosecute abortion crimes, has prompted the red states to investigate other mechanisms for imposing bans. But in places where law enforcement officials seek to enforce abortion bans, medical staff providing treatment to women whose pregnancies have ended could also end up being a source of information for law enforcement officials. In El Salvador, a country with an extremely aggressive approach to enforcing abortion bans, government officials are being sent to hospitals to stress the need for medical staff to report suspicions that a patient has deliberately terminated her pregnancy, according to Michelle O . Professor of Law at the University of Santa Clara 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 pre-Roe United States, women seeking medical care after abortions were being questioned, Reagan said, including threats that “we will not provide the medical care you urgently need” unless they work with surveys. Even now, the medical care women receive for terminated pregnancies can lead to the involvement of law enforcement, according to Dana Sussman, executive director of the National Advocates for Pregnant Women. Sussman’s organization provides defense attorneys and other resources for people facing charges or research into pregnancy and its effects. The organization has documented 1,700 arrests, prosecutions, detentions or forced medical interventions between 1973 and 2020 in women related to pregnancy or pregnancy outcomes, although the majority of these cases do not involve miscarriage or abortion. If Roe is reversed, Sussman said, “I think there will potentially be a lot more collaboration between healthcare providers and the police.” The health insurance portability and accountability law – a 1996 law also known as the HIPAA that sets privacy standards to protect patients’ personal medical information – has exceptions for law enforcement purposes, Sussman noted. “As we expand the ways in which criminal law is applied in this context, HIPAA protections will be more limited.” Another common tactic the organization has seen in its work is law enforcement that uses women’s personal data to find evidence. “When you have someone who is experiencing a miscarriage and the police or prosecutors are trying to make a case for a self-administered abortion,” Sussman told CNN. , what did they look for, for purchases they made, credit card accounts “. He predicted that such digital evidence “would be what prosecutors would need to make this distinction if they were to try to distinguish between a miscarriage and a self-administered abortion”. In the Mississippi case, investigators obtained a search warrant for Latice Fisher, a black woman who had died at her home in 2017. To prosecute, they showed evidence that she had sought abortion pills earlier in her pregnancy. (There is no way to medically test for abortion drugs in a woman’s system after a miscarriage or stillbirth, as the drugs are usually metabolized faster than the time it takes for the fetus to miscarry). To build the case against Fisher, the researchers also relied on a test known as the “lung float test,” a controversial method for investigating infant murder allegations dating back to the 17th century and discredited by many medical experts. Fisher’s lawyers have rejected the use of the “float test”. After prosecutors questioned the credibility of the method, as well as other allegations about Fisher that they found unconfirmed, they dropped the original indictment. When they represented the case in the grand jury with more evidence, the grand jury refused to bring new charges against Fisher. Lori Bertram Roberts, co-founder of the Mississippi Reproductive Freedom Fund who helped defend Fisher, equated the use of Fisher’s Internet search by researchers with a “thought crime.” “Let’s say in two months, I’m thinking about having an abortion and looking for things. And then I decide not to do it, and then I have a miscarriage in four and a half months,” Roberts told CNN. “That’s the risk, right? A lot of people think about having an abortion and then they don’t.”
Who will be the target of the persecution
Legal and historical experts on abortion bans also expect that most of the enforcement will fall on marginalized communities already facing the greatest burden of policing – with some comparing it to the War on Drugs. “You are more likely to be trapped in this web of police for people of color and for people with lower incomes,” Reagan said. Oberman said that in her quest for an extremely strong El Salvador enforcement approach, there were still only about 10 convictions a year, in view of the estimated 30,000 abortions occurring annually in the country. He said the background of a woman is what the authorities in El Salvador will look at to see if her pregnancy ended normally or if it ended deliberately. “Doctors in these cases tend to suspect patients whose history suggests they want an abortion,” he said, such as rape victims, unmarried mothers or those living in gang-infected areas where their personal safety is at stake. “The cases that are being reported are those against the poorest and most marginalized people in society. And the cases that prosecutors are making are similar to those where they can tell a story about motives.”
Local prosecutors who break the law
Anti-abortion activists say they have been consistent in their approach not to target anti-abortion criminal laws to the woman who performs the abortion and that the directive will remain in the forefront if Roe is overthrown.
“I know we have seen, in general, with a few exceptions, a genuine commitment by lawmakers to make it clear that women can not be prosecuted,” said Katie Glenn, the government’s anti-abortion adviser. Americans United for Life.
Jason Rupert, an Oklahoma lawmaker who advocated a ban on abortion that would take effect in the state if Roe was ousted, rejected the idea that women would be targeted, calling concerns “a new fake flag being raised just to raise an issue.” ».
Asked how researchers would determine if a miscarriage was natural or a medical abortion, Rapert said, “You are also talking about the individual’s honesty.
“And I think people will be able to tell what a miscarriage is and what a non-miscarriage,” Rupert, who is also the founder and president of the National Union of Christian Lawmakers, told CNN.
While it will be up to lawmakers to write anti-abortion laws that they hope will end the process, the implementation of these laws will ultimately be up to local prosecutors.
A Texas prosecutor in Starr County has attracted national attention this year for trying to charge a woman with murder for self-induced abortion, despite the exception in Texas law for “behavior committed by the mother of an unborn child.” The prosecutor’s office said it was withdrawing the charges following a review of Texas law.
“In Starr County, the prosecutor initially, and those who initially made the allegations, misunderstood and misapplied the law,” said John Seago, Texas’s law director. “And this is possible, but this is possible with …
