[The end of Roe v. Wade will accelerate an existing effort to
criminally punish people for their abortions, stillbirths, and
miscarriages. ] [[link removed]]

THE GROWING CRIMINALIZATION OF PREGNANCY  
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Melissa Gira Grant
May 5, 2022
The New Republic
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_ The end of Roe v. Wade will accelerate an existing effort to
criminally punish people for their abortions, stillbirths, and
miscarriages. _

,

 

One night in May 2015, Kenlissia Jones was driving with her cousin and
her 19-month-old son to pick up her godsister, who had had car trouble
and was waiting on the side of a road in Putney, Georgia. Before Jones
arrived, an officer pulled her over. She had failed, he said, to dim
her headlights as she approached his car. While Jones’s godsister
watched from down the road, he arrested her for driving on a suspended
license. The cousin took Jones’s son; Jones spent the night in jail.

At the time, Jones was pregnant with her third child. She had been
looking for work and getting turned down, and she wondered if
employers were put off because they could see she was expecting. She
was 22 years old, Black, poor, and on Medicaid. She knew she’d need
money for fines and court fees; she knew that if she wanted to improve
her chances of probation, she’d need a job. She was depressed, and
“under stress to provide for herself and children,” according to a
civil suit she filed later. “Ms. Jones considered her serious
situation,” the filing continued, “and sought solutions.”

From an online pharmacy she ordered misoprostol, a medication that
induces labor and is commonly used for self-managed abortion
[[link removed]]. Nearly
two weeks after she was pulled over, around 11:30 at night, she took
several pills. A few hours later, she went to the hospital, where she
told hospital staff that she hadn’t felt the baby move for a half
hour. To a nurse, who recorded her as being at least 23 weeks
pregnant, she explained that she had taken misoprostol. The hospital
discharged her.

Around 11 hours later, on her way back to the hospital, she delivered
a baby boy who died shortly after he was born. As she lay in bed,
officers waited outside her hospital room. A police investigator
entered and told her to get dressed. The minute Jones left, according
to the civil suit, police handcuffed her. She was still bleeding. At
the county jail, a nurse drew her blood. Police asked her where she
got the pills, what she had planned to do with the baby. In the middle
of the night, they told her she was being charged with murder
[[link removed]].
Shortly afterward, at her home, officers searched her bedroom and took
as evidence an iPhone in a magenta case and an Express Mail envelope.
Back at the jail, someone finally brought four pads to Jones’s cell.
She waited for her first court appearance. The official charge was
“malice murder.” In Georgia, this is a capital offense.

Members of the anti-abortion movement often claim that they are
interested in penalizing only providers and clinics. “The doctor,
the one who has been planning to break the law, is the guilty
party,” said
[[link removed]] Marjorie
Dannenfelser, the head of the anti-abortion group the Susan B. Anthony
List, in December. “The law is enforced against that person, not the
woman.” But these arguments mask a broad, insidious effort to do
otherwise. With the Supreme Court’s imminent decision in _Dobbs v.
Jackson Women’s Health Organization
[[link removed]]_, which could overturn _Roe
v. Wade [[link removed]]_ and trigger
[[link removed]] abortion
bans in at least 17 states around the country, a future that has long
been imagined may soon become painfully concrete. Abortion will not be
legislated out of existence, but those seeking abortions, those who
perform them, and those who help may face criminal penalties,
depending on where they live and who they are—as may people who
miscarry, deliver early, or have stillbirths. If _Roe_ is
overturned, as a leak
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a draft opinion in early May suggested it would be, the resulting
criminalization of pregnancy will inevitably reflect the legal
system’s deep existing prejudices.

At the same time, as reproductive justice advocates have warned
[[link removed]] for decades
now, for Jones and many others like her, that future is already here.
In hundreds of cases over the past 50 years, pregnant people have
faced criminal punishment for the outcomes of their pregnancies. In
some instances, police and prosecutors have exploited the law in
inventive ways or gone outside its bounds, flexing the power of the
state over the bodies of pregnant people in the name of
“protecting” the unborn. National Advocates for Pregnant Women
[[link removed]] has identified
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least 1,600 such cases since 1973 involving arrests or other
deprivations of liberty, according to executive director Lynn Paltrow.
The wide net cast by criminalization—profiling, surveillance,
arrests, and incarceration, along with the cascade of consequences
that follow—has already snared hundreds of people, even with the
protections of _Roe_ in place.

It’s easier to grasp what the criminalization of abortion might look
like in a world without _Roe_ if we understand how reproductive
autonomy is currently criminalized. Anti-abortion groups have already
been fairly successful in spreading uncertainty about whether people
who have abortions commit a crime, regardless of what the law says.
It’s that “aura of illegality,” as a group of experts on
abortion and the law termed it in their brief
[[link removed]] to
the Supreme Court in _Dobbs_, that fuels how people are criminalized,
as much as or even more so than the decisions of lawmakers and courts.

The impending decision in _Dobbs_ is the end point of a decades-long
campaign by anti-abortion groups to criminalize abortion by seeding
[[link removed]] the
idea of “fetal personhood,” a concept that, by detaching the
fetus’s fate from that of the person carrying it, manages to
redefine the pregnant person as a potential criminal. The “creeping
criminalization of pregnancy,” Michele Goodwin writes in _Policing
the Womb
[[link removed]]_,
started with pregnant people who used illegal drugs, and it exploited
an array of largely existing laws. In more recent years
[[link removed]], new
“fetal protection” laws further institutionalized this pattern in
the legal system. Now, according to the Guttmacher Institute, 24
states and the District of Columbia have laws
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substance use during pregnancy as child abuse, and 25 states and D.C.
mandate that health care providers report pregnant patients simply for
suspected drug use. Even when states _don’t_ have such laws,
prosecutors have used charges of murder to criminalize pregnant drug
users. In California, two women who allegedly used drugs were charged
[[link removed]] with
“murder” of a fetus after their pregnancy losses, charges for
which there is no basis in the state’s laws. (One woman’s charge
was dismissed
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the other’s sentence was overturned
[[link removed]].)

This focus first on pregnant drug users exploited a weakness in
mainstream reproductive rights advocacy, which has been primarily led
by women who do not have firsthand experience of criminalization.
“When all these laws were being weaponized against pregnant people
who use drugs, where were the white feminists?” asked Laurie Bertram
Roberts, executive director of the Yellowhammer Fund
[[link removed]], an abortion fund based in
Alabama, and cofounder of the Mississippi Reproductive Freedom Fund
[[link removed]]. “Where was the pro-choice
movement? Because the reproductive justice movement has been here.”
Attacks on _Roe_ weren’t happening just in high-profile
constitutional cases, but in seemingly routine interactions between
pregnant people and the criminal legal system. The absence of
pro-choice groups in these fights wasn’t merely a reflection of
where they chose to focus their resources. “If we are being really
honest,” Bertram Roberts said, it’s because of who is criminalized
by these laws: “All of the women and pregnant people that the white
feminist movement has left behind: poor women; women of color; Black,
Indigenous, people of color; queer people; sex workers; people who use
drugs.”

_/  FREE PICK OF THE WEEK: __Homeland Security’s New
Disinformation Board Is a Bad Idea, Just Not for the Reason Tucker
Carlson Says It Is._
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This expansion of criminal punishment in the name of protecting the
unborn coincided with the rise of mass criminalization and
incarceration over the past half-century, including a dramatic
increase in the number of women locked up: Between 1980 and 2019, that
figure went up
[[link removed]] by
an astounding 700 percent. According to the Sentencing Project, the
rate of growth was twice as high for women as it was for men. Pretexts
to criminalize people for having an abortion, in the context of that
vast system, go far beyond bans, as a recent National Association of
Criminal Defense Lawyers report
[[link removed]] finds.
If _Roe_ is overturned, the federal criminal code has more than
4,450 crimes still on the books—along with tens of thousands of
state criminal provisions, not to mention state conspiracy, attempt,
and accomplice statutes—that could all be used to subject people to
criminal penalties.

As the justice studies professor Grace Howard has described
[[link removed]], we live under a regime of
pregnancy surveillance, regulation, and control. This regime has
already targeted people for self-managed abortion in the United
States: From 2000 to the present day, at least 60 people have faced
criminal penalties for self-managed abortions, according to
preliminary findings from the reproductive justice law and policy
organization If/When/How [[link removed]]. But that is
very likely an undercount, cautioned Farah Diaz-Tello, the
organization’s senior counsel and legal director. Although only four
states have laws explicitly criminalizing self-managed abortion,
If/When/How found
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prosecutors have taken advantage of other laws, in some cases charging
people with feticide. It’s less “what the law says,” Diaz-Tello
observed, than how people are “received by these systems.” And
prosecutors, who are of course responsible for pursuing perceived
violations, are key. What it might come down to, Diaz-Tello said, is
whether particular prosecutors “think abortion is disordered and
should be punished.”

In some ways, health care providers’ decisions are even more
consequential than those of prosecutors, because they may be the first
to have contact with someone undertaking a self-managed abortion, and
the choice they make about whether to report them can lead directly to
arrests. When people say they’ve lost a pregnancy, often “they are
just not believed,” Diaz-Tello said. And whether they are viewed as
“trustworthy or blameworthy,” she added, has everything to do with
their race and their class.

If she hadn’t gone to the hospital, Kenlissia Jones may never have
been arrested. Abortion in Georgia is legal up to 22 weeks
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the generally agreed-upon threshold of fetal viability
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around 23 or 24 weeks. The state had no ban on self-managed abortion.
Nevertheless, a doctor believed that her ingestion of misoprostol was
a criminal act. While she was in jail, held without bond, the district
attorney for Dougherty County, Gregory W. Edwards, told
[[link removed]] reporters
that her case would likely go before a grand jury. An autopsy
was ordered
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But after National Advocates for Pregnant Women took up
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defense, Edwards dismissed
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malice murder charges. “Applicable criminal law and statutes provide
explicit immunity from prosecution for a pregnant woman for any
unlawful termination of her pregnancy,” he explained. However,
another charge in connection with using misoprostol remained:
“possession of a dangerous drug.”

In Jones’s civil suit, she said she intended not to abort but to
deliver early. Yet those she turned to for care reported her to social
services and in turn to law enforcement—actions based on brief
interactions with her during her traumatic experience at the hospital.
“[Baby’s mother] is very nonchalant, not showing any emotional
[sic] or compassion,” alleges a Child Protective Services intake
report, filed shortly after Jones’s induced delivery, while she was
still in the hospital. “The only thing [baby’s mother] was worried
about was being arrested.” Their suspicions about her intentions,
Jones’s civil suit said, were also magnified because of her race and
income level.

Like the murder charge, the charge of “possession” was eventually
dropped. Jones went home to her children; years later, her civil suit
was settled for an undisclosed amount. Yet even today, her mug shot
remains the first photo that comes up when you search her name. “All
that I went through, it was very disturbing, mentally and
physically,” Jones told me. In the annals of abortion
criminalization in the United States, her case—in which a bleeding
woman was discharged from the hospital into police custody and spent
three days in jail, away from her children, with little medical
care—is sometimes considered a good outcome because the charges were
dropped.

It is simply not practical, Bertram Roberts said, to try to get
everyone who lives in states where abortion would be banned to states
where clinics offering abortion are still open. That means it is
essential to expand access to self-managed abortion—currently a
method used by an estimated 7 percent of women of reproductive age in
the United States, according to a 2020 study published
[[link removed]] in _JAMA
Network Open_. After the decision in _Dobbs_, the risk of being
criminalized for self-managed abortion will likely increase.

How can we make abortion more accessible within the legal realities
under which we operate? Post-_Roe_, it will become all the more vital
to help people seeking abortion—and those who assist
them—understand and make informed decisions about their risk of
criminalization. This kind of work isn’t new, although it may be new
when it comes to abortion; from “know your rights”
[[link removed]] education to community bail
funds, many people are already engaged in the essential, everyday
labor of minimizing harm. Certainly it would be a mistake to imagine
that the expanding restrictions on abortion and reproductive care
constitute a “new or unique” form of criminalization, as a
collaborative brief
[[link removed]] from
the Interrupting Criminalization project and reproductive justice
groups puts it; really, the restrictions are “part of a larger
web.” The profiling of people of color, the collusion of health care
providers and police, the prioritizing of punishment over care: All of
this is familiar to groups defending criminalized survivors of
domestic violence or trying to decouple social services from law
enforcement. “Solidarity among anti-criminalization and reproductive
justice organizers,” the brief concludes, “is essential.”

This April, in Texas, Lizelle Herrera was charged
[[link removed]] with
murder in connection with what an indictment called “self-induced
abortion,” after a hospital reported her to police. She was held on
$500,000 bond. In her arrest, we can see a glimpse of what the
post-_Roe_ future might look like. Local groups, including South
Texans for Reproductive Justice
[[link removed]] and the Frontera Fund
[[link removed]], led calls for Herrera’s release;
If/When/How offered legal support and paid
[[link removed]] her
bond. Before large national reproductive rights groups like Planned
Parenthood responded, the primarily Texas-based organizing helped win
Herrera’s release. “We put a spotlight on Starr County
authorities, and they backed down,” said
[[link removed]] Rockie
Gonzalez, founder and board chair of the Frontera Fund. “However,
course correction is not justice.”

Local groups like those that led the effort to release Herrera, said
Aimee Arrambide, executive director of the Texas-based reproductive
justice group Avow [[link removed]], commonly shoulder the
burden without the support they need from national groups. Indeed, the
expertise of people on the ground has historically been ignored.
“That’s one reason our rights are getting taken away,” Arrambide
argued. She was in the early stages of creating a local legal defense
fund when Herrera was arrested; Texas activists, after all, had been
sounding the alarm about criminalization years before _Dobbs_, years
before Herrera’s arrest. But they were ignored. “People—I want
to say naïvely—believed that the judicial system would work out on
the side of constitutionality,” Arrambide said. “And that just
hasn’t happened.”

The future of reproductive freedom necessarily calls for a philosophy
of harm reduction—ways of reducing negative consequences while
acknowledging that they can’t be eliminated. We “have a lot to
learn from harm reduction movements that come before us,” said
Diaz-Tello of If/When/How, like movements for drug users and sex
worker rights. Their members are “experts in those calculations: who
takes on legal risk, who needs to be insulated from legal risk.”
Reproductive justice advocates like Bertram Roberts have long been
making those connections. In Bertram Roberts’s case, her own
experience has guided her. “Coming from being a really conservative
Christian to doing sex work led me to have more empathy and
understanding for the fact that everything isn’t just black and
white,” she said. “You have to be able to move in areas that may
make people uncomfortable, that may not be fully ‘legal,’” she
added, “while you are striving for what should be legal.”

_Melissa Gira Grant
[[link removed]] @melissagira
[[link removed]] is a staff writer at The New
Republic and the author of Playing the Whore: The Work of Sex Work._

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