No matter what they say, it is hard to reconcile pro-life lawmakers’ stance on abortion with what appears to be a complete lack of compassion for the women who have them or need access to them. Though the two need not be mutually exclusive, in this increasingly polarized political climate, they most definitely are. Donald Trump made headlines last year during his presidential campaign when he said that there should be some form of punishment for women who seek to end their pregnancies should abortion become illegal. To be fair, he was criticized by both the left and the right—including anti-abortion activists, but it does raise a very important question: how is it possible to criminalize one without the other?
His remarks exposed a tension at the heart of the pro-life legal movement: How can abortion become illegal without punishing the women who seek them? The question has come into greater relief over the last several decades, as state and federal laws have evolved to regard fetal deaths as potential homicides. With Republicans now in control of federal judicial nominations and most statehouses, growing gaps in the abortion rights landscape seem likely to drive more women to self-abort, just as several high-profile cases have shown prosecutors willing to bring charges against those who take desperate measures to end their pregnancies.
Since Roe v. Wade, there are at least two dozen cases in which women were investigated or prosecuted for self-induced abortions. But the real number is likely unknown. About half of them were charged with homicide, manslaughter or related crimes. This is legal because of fetal homicide laws—laws on the books currently in 38 states which make the killing of a fetus a crime. Some of these laws are justified by lawmakers through horrific cases where a pregnant woman was a victim of a crime and she and the baby are killed (like Laci Peterson in California, who was 8 1/2 months pregnant when she disappeared, only to be found murdered three months later by her husband who had been having an affair).
Fetal homicide laws are the result of a two-pronged strategy that anti-abortion groups adopted after their 1973 Supreme Court defeat in Roe: They pushed state laws that made abortions harder to get and expanded the legal rights of fetuses so that the public, and eventually the courts, would begin to regard the unborn—no matter what stage of development—as children. Advocates started by working to define life as beginning at conception in nonabortion contexts—property or contract law, for instance.
These laws are straight out of the Stone Age. It is not okay try to re-litigate Roe v. Wade for the umpteenth time to take women back to a time when they could not have autonomy over their bodies. As a reminder: when women don’t have access to safe, legal abortions and attempt to self-induce abortions, the consequences are dangerous and life-threatening. And yet prosecutors stand at the ready—waiting to punish desperate and near dying women.
But several recent cases have shown there are prosecutors ready to use the laws to punish women who perform their own abortions. The methods can be desperately brutal. Women have been targeted for shooting themselves, stabbing their bellies, and drinking toxic levels of herbal tea. In 2015, a Tennessee woman named Anna Yocca was charged with attempted first-degree murder after allegedly using a coat hanger to try to end her pregnancy. She took a plea deal this January after spending a year and a half in jail. [...]
In 2013, prosecutors used the law against Purvi Patel, who went to the emergency room after taking pills she bought online to end her pregnancy and experiencing heavy bleeding. A pro-life doctor turned her in to the police. After three years behind bars, Patel was convicted of feticide and neglect of a dependent. She was sentenced to 20 years before the state's appeals court overturned the feticide conviction last September, accusing prosecutors of "unsettling" overreach.
As Republican lawmakers continue to try to restrict access to abortions, women are becoming increasingly desperate. In 2011, after almost 100 state-level abortion restrictions had been enacted, the New York Times analysis found that Google searches on self-inducted abortion (using phrases “how to have a miscarriage” and “how to do a coat hanger abortion”) had jumped nearly 40 percent compared to the year before. Mississippi was the state with the highest rate of searches. This coincided with the fact that the state has just two abortion providers for the entire state. This is madness. This kind of obsession with women’s reproductive decision making is forcing women into unsafe situations for no reason. And with Republicans dominating state legislatures all over the country, it will only get worse in the Trump era.