Her Body, Our Laws

by Michelle Oberman

  Think of it this way. In 1972, the United States experienced 5,000 abortion-related deaths in a population of 200 million. Today, there are 600 million people in Latin America. At 1972 rates, we’d expect to see 15,000 women dying from illegal abortions every year. Instead, in 2016, there were around 900 deaths.

  I want to be clear: the risks of dying from illegal abortion haven’t dropped everywhere in the world. In Africa, abortion-related deaths remain high; it’s the cause of at least 9 percent of all maternal deaths. As many as 16,000 African women die from illegal abortions every year.9 But in the world’s more industrialized nations, the rate of deaths from illegal abortions has dramatically declined.

  Why the difference? Experts point to widespread access to abortion drugs throughout Latin America (and indeed, throughout much of the world, with the exception of Africa). For example, consider the case of Brazil. Exact figures are impossible to determine, as is always the case where abortion is illegal, but experts believe that somewhere between 500,000 and 1 million pregnancies are terminated in Brazil each year. Around half of them are induced using abortion drugs and the rest are performed in clandestine clinics. Between 2003 and 2009, as abortion drugs became easier and easier to procure, the number of women hospitalized from complications from illegal abortions fell by 40,000.10

  For any woman with a smartphone and money, illegal abortion today is far less risky than it was in 1972. That is to say, the risks of illegal abortion vary by class, age, education level, geographic location, and race.

  As a result, we already know what illegal abortions will look like in the United States, in the event that abortion becomes illegal. Remember what we saw in El Salvador: women who live in cities and are educated enough to determine how long they’ve been pregnant and how to procure the right dose of Cytotec that can end their pregnancies without detection. The medical risks—uncontrolled bleeding and infection from an incomplete abortion—are readily treated. With 25 percent of all pregnancies ending in miscarriage, losing a pregnancy is so commonplace that, in the vast majority of cases, doctors will have no way of knowing whether a woman deliberately ended her pregnancy.

  But the risks of illegal abortion vary. A wealthy woman can readily identify and buy unadulterated drugs or access to a well-trained physician. A poor woman will struggle to find accurate information and safe abortion providers. A pregnant teenager living in a Salvadoran village might have a smartphone; almost everyone there does. But chances are that she’ll have a harder time safely ending her unwanted pregnancy because she’ll be poorer, less educated, and farther away from the cities where she might buy abortion drugs. Even if she finds money to pay for the bus and the abortion drugs, she’s less likely than her more educated peers to know how far along her pregnancy is, or how to navigate the black market to find a safe abortion provider.

  But we need not look to El Salvador to imagine how the black market in illegal abortion will work here. The United States already is experiencing an increase in illegal abortions. As we saw in chapter 4, with the growing number of regulations governing abortion providers, the costs of accessing abortion have increased. One consequence of increasing the time and money required to get a legal abortion is a rise in the number of women attempting to terminate their pregnancies on their own. A 2015 study by Dr. Dan Grossman confirmed this trend. He surveyed Texas women having clinic-based abortions and found that 7 percent of them had first tried one or more times to terminate their pregnancies on their own.11

  Hospitals, too, are seeing signs of this trend. For example, in 2015, a Tennessee woman named Anna Yocca attempted to give herself an abortion with a coat hanger in a bath tub. She was twenty-four weeks pregnant. Worried about the excessive bleeding she immediately experienced, Yocca went to the emergency room. She later was charged with attempted murder. A few years earlier, a Tennessee woman’s attempt to induce an abortion with a coat hanger led to a life-threatening infection, forcing doctors to perform a hysterectomy.12 Three recent cases involve women accused of having shot themselves in the belly in an effort to end their pregnancies.13

  If women already are opting to attempt to end their pregnancies on their own, surely they will continue to do so in greater numbers if abortion becomes illegal and thus even harder to access. And as greater numbers of women attempt to self-abort, we will see an increase in the number of women seeking emergency care after self-abortion.

  We already know, having seen what happened in El Salvador, that any effort to enforce laws against abortion will focus on what happens in the emergency room. It is at the emergency room bedside that we can begin to consider the answers to the questions of when and how abortion crimes will be enforced.

  THE QUESTION OF ENFORCEMENT

  If abortion is a crime, who is the criminal? Will we punish the woman who has an abortion or her doctor? What if there is no doctor involved? How much of our criminal justice resources are we willing to spend on enforcing abortion laws?

  The question of how and when abortion will be prosecuted is one of the most intensely disputed issues in our contemporary abortion debate. Abortion rights advocates often assume that, if abortion becomes illegal, women will be targeted. Their position is bolstered by occasional pro-lifers’ assertions that “there would have to be some sort of punishment for women,” as President Donald Trump said while on the campaign trail in 2016.14

  But most antiabortion advocates reject this position, explaining that, even if abortion is illegal, women will not be targeted. Rather than seeing women who have illegal abortions as criminals, they see them as abortion’s “second victims.”15

  Instead of punishing women, pro-life movement leaders assert that when abortion becomes a crime, abortion doctors, not women, will be punished.16 Indeed, the official pro-life position labels the suggestion that women could be prosecuted for illegal abortions “pro-choice propaganda.” Clarke Forsythe, general counsel of the pro-life advocacy group, Americans United for Life, is emphatic on the subject: “Pro-life legislators and pro-life leaders do not support the prosecution of women and will not push for such a policy when Roe is overturned.”17

  The truth is that both sides are right. As we’ll see, abortion laws historically and today typically are not enforced against women but, rather, against those who provide illegal abortions. Nonetheless, in recent years, hundreds of US women have been prosecuted for crimes stemming from their own attempts to terminate their pregnancies.

  Prosecuting Abortion

  I was surprised to learn how rarely abortion laws are enforced in places where it is illegal. Indeed, it was my desire to understand the scarcity of prosecutions in Chile—despite the ban, there are only a handful of prosecutions a year, mostly against doctors—that inspired this book. Throughout history, and around the world today, abortion-related prosecutions are few and far between.

  Professor Leslie Reagan has written a comprehensive history of how the United States enforced its laws against abortion in the years before 1973. In it, she documents a pattern of occasional, local efforts at cracking down on illegal abortion, accompanied by a general tendency to look the other way.18 And although law enforcement strategies varied over time, the targets for prosecution were almost never women. Instead, the so-called “abortionists” were charged with the crime.19 However, unless a woman died, these doctors seldom were arrested and even more seldom convicted.20

  It wasn’t that prosecutors could not have charged women with illegal abortion. Most state laws were general, making it illegal for anyone to bring about an abortion. In fifteen states, laws explicitly penalized women who solicited or submitted to an abortion.21 Some states even made it clear they wanted to target women, enacting laws against “self-abortion.” For example, an 1869 New York law criminalized a woman’s participation in her own abortion.22 Even today, there are no fewer than four states with laws on the books that forbid “self-abortion.”23

  Despite the fact that prosecutors could have prosecuted women for having illegal abortions,
though, there is no evidence that they did so. In the century or so when abortion was illegal, US historians have found only two cases involving women charged with abortion-related crimes—one in 1911 and another in 1922.24

  The same pattern prevails throughout the world today in countries where abortion is illegal. Abortion prosecutions are rare. One finds occasional crackdowns, rather than consistent enforcement. There was one in 2007, in Mato Grosso do Sul, a remote state in Brazil, in which officials subpoenaed ten thousand medical records from two decades of practice at a notorious abortion clinic and sentenced three hundred women to perform community service for having committed the crime of abortion.25 Between 2009 and 2011, several conservative states in Mexico intensified abortion prosecutions, seemingly in response to Mexico City’s decision to legalize abortion.26 Typically, these spikes in prosecution are local, rather than part of a national or even a regional policy or plan. For the most part, prosecutions focus on abortion providers, rather than on the women who seek them.

  El Salvador is the exception among countries because it has enforced its abortion laws primarily against women, rather than against their doctors. That’s what led me to go there. Law enforcement agents have toured the country’s hospitals, urging doctors to report women they suspect of having deliberately ended their pregnancies. Even so, prosecutions are rare. There are, on average, only twelve abortion-related prosecutions a year.27 And as we saw in chapter 2, most of those cases wind up involving women whose babies die during childbirth. They are not really abortion cases at all.

  When abortion is a crime, women are seldom prosecuted. But seldom is not the same as never. A close look at the cases that do get prosecuted, both in the United States and abroad, reveals a striking pattern: they are cases in which there is no doctor to blame.

  Which Women Are Prosecuted?

  Pro-life advocates explain the decision not to prosecute women by positing that the woman who commits an abortion on herself is not the perpetrator, but the “second victim” of the crime. As notions go, it is not a particularly compelling one.

  The claim that women are victimized by abortion might be borne out in a narrow set of cases. A woman looking for love puts her trust in a bad man who leaves her pregnant and alone. One can see this narrative at work in the following excerpt, from pro-life Amherst College jurisprudence professor Hadley Arkes:

  On the one hand there may be a young, unmarried woman, who finds herself pregnant, with the father of the child not standing with her. Abandoned by the man, and detached from her family, she may feel the burden of the crisis bearing on her alone, with the prospect of life-altering changes.28

  The problem with the “second victim” exception to abortion prosecutions is that not all women fit the pattern. Not all women who have abortions look like victims, or at least not like the sort of victims Arkes might recognize.

  Life typically is more complicated than a morality play, after all. Sometimes there are many men or no man in particular. Sometimes the woman is on drugs. Sometimes she ends her pregnancy on her own; there is no doctor to blame. Unsurprisingly, as the narrative shifts, so too does the extent to which the woman is perceived as a second victim of abortion.

  So long as there is a doctor or a faithless lover in the picture, it is possible to understand the crime of illegal abortion as having two victims, with the doctor or the absconding lover emerging as the only criminal. What happens, though, when there is no third party involved?

  In recent decades, law enforcement officials have charged hundreds of US women with crimes relating to pregnancy or abortion. This is true even though abortion is legal. Pro-choice advocates see these prosecutions as evidence that it will become routine for states to charge women with abortion crimes if abortion becomes illegal. Pro-life advocates object, insisting that these prosecutions involve extraordinary facts—not simple illegal abortions—and therefore the women involved merit punishment.

  The dispute is complicated because the cases aren’t necessarily straightforward. Regardless, one fact unites almost all the prosecutions to date: these are cases in which there are no doctors to blame for the harm done to the fetus. And it turns out that, without a third party to blame, the law sees the women not as second victims but, rather, as criminals.

  A 2013 article offered the first systematic investigation into cases in which officials have endeavored to restrict and punish pregnant women for harming their fetuses. Authors Lynn Paltrow and Jeanne Flavin identified and analyzed 413 cases from 1973 to 2005.29 Drawing their data from a thorough review of newspaper articles and court dockets, and including only cases that were fully adjudicated by the time of publication, their study offers an overview of the range of ways in which the legal system has targeted pregnant women.

  Some of the cases they found seem unrelated to abortion, such as those targeting women accused of using drugs or alcohol while pregnant. Indeed, most of the interventions they identified concerned women who sought not to terminate, but rather to continue their pregnancies. The women in these cases typically were restrained, and even prosecuted, for behaving in ways that risked harming their fetuses. But many of the cases Paltrow and Flavin identified did involve women who were prosecuted for illegally ending their pregnancies. The truth is that, around the country today, women are being prosecuted for having illegal abortions.

  You might wonder how a woman can be prosecuted for illegal abortion, if abortion is legal in the United States? The answer lies in the fact that we regulate abortion, as we do all health procedures. Abortion is only legal when it is performed in compliance with these regulations. At the very least, this means that to be legal, an abortion must be performed by a licensed doctor. Therefore, a woman who ends her pregnancy on her own can be understood to have had an illegal abortion.

  Paltrow, a lawyer who has for decades been defending women accused of illegal abortion and other pregnancy-related crimes, notes that, between 1973 and 2013, at least 413 women were prosecuted for illegal abortions.30 These cases range from alleged illegal abortions to claims arising out of miscarriages, stillbirths, or perceived risks taken while pregnant and thought to have contributed to the death of the fetus.31 Women have been prosecuted in cases of fetal demise in nineteen different states, and not only for illegal abortion, but for a variety of related crimes as well.32

  The prosecutions stand in stark contradiction to the claim that women will not be punished for abortion because they are “abortion’s second victims.” The common thread in these cases is that they almost always involve women who acted on their own, rather than with the help of an abortion provider. With no one else to be the “perpetrator,” a prosecutor might see the woman not as a victim, but instead as a criminal.

  The facts underlying many of these prosecutions testify to the ways in which abortion regulations already restrict abortion access, leading desperate women to attempt unsafe abortions. If these sorts of self-abortion cases are arising while abortion is still legal, then we are sure to see more of them if and when abortion becomes illegal. As such, it’s helpful to examine one such prosecution in detail, so we can better understand how the law can be invoked to punish a woman suspected of having illegally terminated her pregnancy.

  In July 2013, Purvi Patel was charged with two crimes relating to the death of her fetus. A disclosure here: I followed the case closely not only because it interested me, but also because my spouse was her appellate defense lawyer.

  Patel was unmarried and living with her parents, who were devout Hindu immigrants, when she became pregnant. She worried about how her parents would respond to her violation of their norms surrounding premarital sex and out-of-wedlock pregnancy. These concerns were intensified by the fact that she had been having an affair with a married coworker.

  Estimating that she was at most three months’ pregnant, Patel determined to end the pregnancy without her parents’ knowledge. After learning that a trip to the nearest abortion clinic would take over three hours and that she would need to
return twice in order to have the procedure, Patel found an online advertisement for abortion pills, sold by an overseas pharmacy. She ordered the drugs, and when they arrived two weeks later, she took them.

  It turned out that her pregnancy was far more advanced than she’d thought. After ingesting the pills, Patel delivered a one-and-a-half-pound baby of approximately twenty-five to twenty-six weeks’ gestation in the bathroom of the home she shared with her parents.

  She arrived at the emergency room, hemorrhaging and having lost 20 percent of her total blood volume. After several hours of emergency surgery, she awoke surrounded by police officials, who questioned her about the whereabouts of her missing fetus. When authorities located the body, the state of Indiana charged Patel with both felony child neglect and feticide. After trial, she was sentenced to twenty years in prison.

  There is a stark contrast in the ways in which the pro-choice and pro-life media responded to Patel’s conviction. The pro-choice world was outraged by Patel’s prosecution, asserting that she was innocent, and that she had been sentenced for having a miscarriage.33 By contrast, the pro-life world saw Patel as a monster:

  [W]hat happened here wasn’t just an abortion. . . . Granted, the line between legal abortion and criminal feticide isn’t a bright one. Both kill a child whose existence is disagreeable to someone. But someone who seeks out an abortionist at least has the excuse that a professional the law says she can trust lied to her and withheld key information about what abortion really was.34

  Those who supported Patel’s conviction worried that pro-choice advocates would use the case “as a golden opportunity to push the meme that pro-lifers are secretly clamoring to throw post-abortive women in jail.”35 They insisted that the facts were otherwise, pointing to the fetus’s gestational age and the illegal drugs as distinguishing factors.36