Her Body, Our Laws
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3. Pete Williams, “Abortion Could Be Outlawed in 33 States if Roe v. Wade Overturned: Report,” NBC News, January 23, 2017, http://www.nbcnews.com/news/us-news/report-abortion-could-be-outlawed-33-states-if-roe-v-n710816.
4. “Marina,” in discussion with the author, 2009.
5. Seth F. Kreimer, The Law of Choice and Choice of Law: Abortion, the Right to Travel, and Extraterritorial Regulation in American Federalism (1992), Faculty Scholarship Paper, 1336fn9, http://scholarship.law.upenn.edu/faculty_scholarship/1336.
6. See Colleen Heild, “New Mexico Becomes Abortion Magnet,” Albuquerque Journal, March 20, 2016, https://www.abqjournal.com/743253/more-women-coming-to-nm-for-abortions.html.
7. See Kate Sheppard, “Why This Woman Chose Abortion—at 29 Weeks,” Mother Jones, July 25, 2011, http://www.motherjones.com/politics/2011/07/late-term-abortion-29-weeks-dana-weinstein; also see Molly Hennessy-Fiske, “Crossing the ‘Abortion Desert’: Women Increasingly Travel out of Their States for the Procedure,” Los Angeles Times, June 2, 2016, http://www.latimes.com/nation/la-na-adv-abortion-traveler-20160530-snap-story.html.
8. Compare with Mark D. Rosen, “Extraterritoriality and Political Heterogeneity in American Federalism,” University of Pennsylvania Law Review 150 (2002): 855, http://scholarship.law.upenn.edu/penn_law_review/vol150/iss3/2. Rosen argues that the law actually permits states to regulate their citizens’ out-of-state activities for the purpose of ensuring the efficacy of constitutional state policies, and that state’s determinations to regulate citizens’ extraterritorial conduct is actually only a policy decision.
9. Alan Guttmacher Institute, “Abortion in Africa: Incidence and Trends,” May 2016, https://www.guttmacher.org/fact-sheet/facts-abortion-africa.
10. Andrew Downie, “Abortions in Brazil, Though Illegal, Are Common,” Time, June 2, 2010, http://content.time.com/time/world/article/0,8599,1993205,00.html.
11. Texas Policy Evaluation Project, “Texas Women’s Experiences Attempting Self-Induced Abortion in the Face of Dwindling Options,” November 17, 2015, https://liberalarts.utexas.edu/txpep/_files/pdf/TxPEP-Research-Brief-WomensExperiences.pdf.
12. See Tess Barker, “The New Reality: Women Charged for Murder After Self-Inducing Abortions,” Broadly, January 24, 2016, https://broadly.vice.com/en_us/article/the-new-reality-women-charged-for-murder-after-self-inducing-abortions. Also see Teresa A. Saultes, Diane Devita, and Jason D. Heiner, “The Back Alley Revisited: Sepsis after Attempted Self-Induced Abortion,” Western Journal of Emergency Medicine 10, no. 4 (2009): 278–80.
13. Paltrow, “Roe v. Wade and the New Jane Crow,” 17–21. A 2010 case from Utah involved a woman charged with illegal abortion after hiring a man to beat her up in order to bring on a miscarriage.
14. Matt Flegenheimer and Maggie Haberman, “Donald Trump, Abortion Foe, Eyes ‘Punishment’ for Women, Then Recants,” New York Times, March 30, 2016, https://www.nytimes.com/2016/03/31/us/politics/donald-trump-abortion.html; Tara Culp-Ressler, “Abortion Bans Are Putting Women Behind Bars,” ThinkProgress, March 9, 2015, https://thinkprogress.org/abortion-bans-are-putting-women-behind-bars-119b8fba1c70.
15. Rachel Lu, “Why Pro-Lifers Don’t Support Punishing Women for Abortion,” Federalist, April 5, 2016, http://thefederalist.com/2016/04/05/why-pro-lifers-dont-support-punishing-women-for-abortion/.
16. Flegenheimer and Haberman, “Donald Trump, Abortion Foe.” The day after Donald Trump’s remarks, the New York Times reported on the outpouring of condemnation by pro-life advocates throughout the country. The article quoted Jeanne Mancini, the president of the March for Life Education Fund, as saying that efforts to punish individual women would be “completely out of touch with the pro-life movement” and “no pro-lifer would ever want to punish a woman who has chosen abortion”; Bruce Haynes, a Republican strategist, as stating he could not recall “‘any credible corner of the movement’ calling for criminal sanctions against women who sought abortions”; Governor John Kasich as declaring, “Of course women shouldn’t be punished”; and Senator Ted Cruz as stating, with reference to a woman who has an abortion, “Of course we shouldn’t be talking about punishment.”
17. Clarke Forsythe, “Why the States Did Not Prosecute Women for Abortion Before Roe v. Wade,” Americans United for Life, April 23, 2010, http://www.aul.org/2010/04/why-the-states-did-not-prosecute-women-for-abortion-before-roe-v-wade/.
18. Reagan, When Abortion Was a Crime.
19. Ibid., 114, 164.
20. Leslie Reagan, “Victim or Accomplice? Crime, Medical Malpractice, and the Construction of the Aborting Women in American Case Law, 1860s–1970,” Columbia Journal of Gender and Law 10 (2001): 311, 332. “Although state laws provided for the prosecution of women who had abortions, late-nineteenth-century state prosecutors went after the abortionists. Juries were reluctant, however, to convict people accused of performing abortions. As a result, prosecutors increasingly focused on prosecuting abortionists whose practice had resulted in the death or severe injury of a woman patient. This emphasis did not change until around 1940 (332).
21. Samuel W. Buell, “Criminal Abortion Revisited,” New York University Law Review 66 (1991): 1774, 1785.
22. Suzanne M. Alford, “Is Self-Abortion a Fundamental Right?,” Duke Law Journal 52 (2003): 1011, 1022. New York, Laws of 1869, Chap. 631, entitled “An act relating to the procurement of abortions, and other like offences”: Every woman who shall solicit of any person any medicine, drug, or substance or thing whatever, and shall take the same, or shall submit to any operation, or other means whatever, with intent thereby to procure a miscarriage, shall be deemed guilty of a misdemeanor, and shall, upon conviction, be punished by imprisonment in the county jail, not less than three months nor more than one year, or by a fine not exceeding one thousand dollars, or by both such fine and imprisonment.
23. Louisiana, Mississippi, and North and South Dakota have laws in place that would automatically make abortion illegal if Roe v. Wade were to be overturned. Pete Williams, “Abortion Could Be Outlawed in 33 States if Roe v. Wade Overturned: Report,” NBC News, January 23, 2017, http://www.nbcnews.com/news/us-news/report-abortion-could-be-outlawed-33-states-if-roe-v-n710816.
24. See Commonwealth v. Weible, 45 Pa. Super. 207 (1911). Also see Crissman v. State, 93 Tex. Crim. 15, 245 S.W. 438 (Tex. Crim. App. 1922).
25. Carmen Hein de Campos, “Mass Prosecution for Abortion: Violation of the Reproductive Rights of Women in Mato Grosso do Sul, Brazil,” AWID Women’s Rights, 2016, https://www.oursplatform.org/resource/mass-prosecution-abortion-violation-reproductive-rights-women-mato-grosso-sul-brazil/.
26. “Abortion Prosecutions on the Rise in Many Mexican States,” Mexico Gulf Reporter, August 6, 2012, http://mexicogulfreporter.blogspot.com/2012/08/abortion-prosecutions-on-rise-in-many.html.
27. Center for Reproductive Rights and the Agrupación Ciudadana, Marginalized, Persecuted, and Imprisoned: The Effects of El Salvador’s Total Criminalization of Abortion (New York: 2014, https://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/El-Salvador-CriminalizationOfAbortion-Report.pdf.
28. Hadley Arkes, “One Untrue Thing: Life after Roe,” National Review Symposium, August 1, 2007, http://www.nationalreview.com/article/221742/one-untrue-thing-nro-symposium.
29. Lynn Paltrow and Jeanne Flavin, “Arrests of and Forced Interventions on Pregnant Women in the United States, 1973–2005: Implications for Women’s Legal Status and Public Health,” Journal of Health Politics, Policy and Law 38, no. 2 (2013): 299–343, http://jhppl.dukejournals.org/content/38/2/299.refs.
30. L. M. Paltrow, “Roe v. Wade and the New Jane Crow: Reproductive Rights in the Age of Mass Incarceration,” American Journal of Public Health 103, no. 1 (2013): 17–21, doi:10.2105/AJPH.2012.301104.
31. Ibid.
32. Five states have laws explicitly criminalizing self-abortion. The other states use alternative theories to bring charges against women. For example, thirty-nine states make it illegal for anyone other tha
n a medical provider to perform the procedure. Although some states explicitly exempt women from prosecution under state abortion laws, others are silent. As such, whether under self-abortion statutes or under laws restricting abortion to medical providers, women can be and have been charged with illegal abortion.
33. Sally Koh, “Indiana’s Other Outrageous Law,” CNN, March 31, 2015, http://www.cnn.com/2015/03/31/opinions/kohn-indiana-anti-abortion-law/. Prosecutors claimed that Patel ordered abortion-inducing drugs online and tried to terminate her pregnancy, but a toxicology report failed to find evidence of any drugs in her system. She received a thirty-year-sentence on the felony neglect charge, ten of which were suspended. A six-year sentence for feticide was to be served concurrently. Emily Bazelon, “Purvi Patel Could Be Just the Beginning,” New York Times, April 1, 2015, https://www.nytimes.com/2015/04/01/magazine/purvi-patel-could-be-just-the-beginning.html.
34. Calvin Freiburger, “Death, Lies, And Relativism in the Purvi Patel Feticide Conviction,” Live Action News, April 3, 2015, http://liveactionnews.org/death-lies-relativism-purvi-patel-feticide-conviction/.
35. Ibid.
36. Ibid. “The 33-year-old Patel is ‘an educated woman of considerable means,’ and ‘if [she] wished to terminate [her] pregnancy safely and legally, [she] could have done so.’ Instead, she repeatedly rejected a friend’s insistence that she see a doctor, simply because she didn’t want her traditional Hindu parents to know she’d had sex with a married co-worker. She didn’t get a doctor to do it, but killed her son herself. Her son who was viable.” See also, Texas Right to Life staff, “What Really Happened to Purvi Patel’s Baby Boy?,” Texas Right to Life News, April 9, 2015, https://www.texasrighttolife.com/what-really-happened-to-purvi-patel-s-baby-boy/. “Now, the liberal media’s spin on the story goes something like this: Purvi Patel suffered a miscarriage and was thrown in jail for something completely out of her control because Pro-Life feticide laws are that outrageous. Cue the evidence-spinning and abortion lobby pandemonium.”
37. Associated Press, “Indiana Court Tosses Purvi Patel’s 2015 Feticide Conviction,” NBC News, July 22, 2016, http://www.nbcnews.com/news/asian-america/indiana-court-tosses-purvi-patel-s-2015-feticide-conviction-n615026.
38. Paltrow and Flavin, “Arrests of and Forced Interventions on Pregnant Women,” 309.
39. Ibid., 309–10.
40. Ibid., 311.
41. Ibid., 311.
42. Tara Culp-Ressler, “This Woman Says She Had a Miscarriage. Now She Could Face 70 Years in Prison,” ThinkProgress, March 30, 2015, https://thinkprogress.org/this-woman-says-she-had-a-miscarriage-now-she-could-face-70-years-in-prison-c62d73ba32e1. “According to a study conducted by NAPW reviewing the prosecutions of women in relation to their pregnancies between 1973 and 2005, low-income women and women of color are disproportionately arrested under feticide laws. Black women are significantly more likely to be reported to authorities by hospital staff under suspicion that they harmed their unborn children.”
43. “Twelve Facts About the Abortion Ban in El Salvador,” Amnesty International Report, September 25, 2014, https://www.amnesty.org/en/latest/news/2014/09/twelve-facts-about-abortion-ban-el-salvador/. El Salvador has the highest rate of teenage pregnancy in Latin America. According to the National Family Health Survey, more than one-fifth (23 percent) of all teenagers aged between fifteen and nineteen in El Salvador have been pregnant at least once. Nearly half of them were under eighteen and didn’t intend to get pregnant.
44. Ibid. Suicide accounts for 57 percent of the deaths of pregnant females aged ten to nineteen in El Salvador, though it is likely many more cases have gone unreported.
45. Moloney, “Rape, Abortion Ban Drives Pregnant Teens to Suicide.”
46. Sunstein, “On the Expressive Function of Law,” 2021, 2031.
Conclusion: Parting Thoughts on Leaving Behind the Abortion War
1. George Orwell. “Looking Back on the Spanish War” (1943), reprinted in A Collection of Essays (New York: Harcourt, 1946), 193–94.
INDEX
Please note that page numbers are not accurate for the e-book edition.
abortion: ban on, in Chile (see Chile); ban on, in El Salvador (see El Salvador); debate on (see abortion debate); doctrine of double-effect and, 32, 149n29; fetal status as a separate human being and, 31; impact of bans on the abortion rate, 44, 63; impact of bans on the birth rate, 63–64; laws against (see abortion laws); legal battles in the 1990s, 4; misinformation about oral contraceptives, 83–84; moral boundaries expressed in abortion bans, 41; potential medical consequences of a surgical abortion, 44–45; public choice theory and opposition to, 92–93; rates of maternal mortality from, 8, 124, 146n8; reasons women choose, 1–2; relevance of abortion’s legal status for vulnerable women, 4–5, 6–7, 11; state-mandated misinformation about, 145–46n5; symbolic laws and, 41–42, 141–42; in the US (see United States); women’s consideration of the laws concerning (see abortion-minded women)
Abortion and the Politics of Motherhood (Luker), 71
abortion debate: common ground in, 141–42; emotions embedded on both sides of, 139–40; fetal status as a separate human being and, 31; fundamental rights for women and, 36; moral boundaries expressed in abortion bans, 3, 41, 81, 83–84, 85; pro-life versus antiabortion, 103; symbolic importance of abortion laws, 41–42, 141
abortion drugs, 8, 45–46, 124, 125, 151n8
abortion laws: anti-abortion activists’ vision for, 79; in Chile (see Chile); constitutionality of states’ anti-abortion laws, 114, 120, 122, 158–59n11; correlation between abortion rates and, 44, 114–15; doctors’ compliance with (see doctors and abortion detection); in El Salvador (see El Salvador); impact on poor women, 66, 75, 78–79, 113, 115–16, 117, 123, 156n57; intent of, 113, 116–17; moral justification derived from, 137; questioning if the laws matter, 12; against self-abortion, 128, 131, 162–63nn22–23, 163n32; symbolic importance of, 41–42, 141; in the US (see United States)
abortion-minded women: constitutionality of states’ anti-abortion laws, 114, 120, 122, 158–59n11; cost factor of motherhood, 97–98, 106, 107, 109–11; crisis pregnancy centers and, 99 (see also Birth Choice); de facto fertility policy in the US, 109–11; family caps on welfare recipients, 110–11; impact of abortion laws on poor women, 66, 75, 78–79, 113, 115–16, 117, 123, 156n57; impact of public policy choices on, 111; impact of restrictive laws on abortion rates, 114–15; impact of Roe on choices made, 112; intent of anti-abortion laws, 113, 116–17; lawmakers’ capacity to shape human behavior, 112; lawmakers’ testing of their power to regulate abortion, 113; monetary impact of abortion restrictions, 115–16; pregnancy’s impact on existing vulnerabilities for poor women, 1–2, 3–4, 108–9; pro-life states’ responses to “undue burden test,” 114; pro-motherhood intent of abortion laws, 113; relevancy of abortion’s legal status for vulnerable women, 4–5, 6–7, 11; Western European policies that encourage childbearing, 109
abortion tourism, 123
Access Women’s Health Justice (AWHJ), 107–8, 110, 141
adoption, 157–58n2
Africa, 124
Agrupación Ciudadana, 61
Americans United for Life (AUL), 70, 78, 114, 127, 156n2
Amnesty International, 26
anencephaly, 17
Aquinas, Thomas, 149n29
ARENA, 22
Arizona, 145–46n5
Arkes, Hadley, 129
Azam-Yu, Samara, 107–9, 110, 111
Baptist Children’s Home, 72
Baptist Messenger, 72
Beatriz’s story. See petition for an abortion in El Salvador
Bellotti v. Baird, 159n11
Big Sort, The (Bishop), 90
Birth Choice, 141; background and founders, 99–102; choice of residents for their safe house, 105; counselors’ sentiments about why a woman would hurt her child, 101; founding story, 102–3; mission, 103, 106; position on a complete ban on abortion, 106; supportive services, 101, 103–5, 106
Bisho
p, Bill, 90
black market abortions, 123–26
Blakely, Ruth, 102. See also Birth Choice
Brazil, 45, 124, 128
Cain, Bernest, 70–71, 75–76, 78
California, 107, 110
Cardenal, Julia Regina de, 26–27
Casas, Lidia, 7–9
Catholic Church, 23, 32, 71, 73, 74, 91, 149n29
Chile: cost of an abortion, 9; enacting of the abortion ban, 7–8; number of drug-induced abortions per year, 8, 146n7; prosecutions for abortions, 8–9, 127; rates of maternal mortality from abortions, 8, 146n8; results of convictions for obtaining an abortion, 9–10; use of abortion drugs in, 8
Chisko, Barbara, 100. See also Birth Choice
Christina’s story: delivery of her baby, 57; police response to a doctor’s report, 58; probability that she experienced a medical emergency, 58, 59; prosecutor’s argument at the preliminary hearing, 58; release due to a judicial error, 60; reopening of her case with new charges, 59
coat hangers and abortion, 45, 64, 119, 123, 126
contraception, 1, 3, 44, 83–84, 136, 139
corpus delecti, 49, 153n23
crisis pregnancy centers, 99. See also Birth Choice
Cruz, Ted, 162n16
Cytotec, 125
Death Peddlers, The (Marx), 106
District of Colombia, 158n8
doctors and abortion detection: case of feticide and child neglect charge, 132–33, 164n33, 164n36; diagnostic challenge of distinguishing abortion from miscarriage, 48–49, 52; doctors’ compliance with reporting suspected abortions, 49–50, 51, 153n26; a doctor’s support of the abortion law, 53–54; government’s enlistment of doctors, 46; legal process for pressing charges, 53, 154n35; legal standard for proving a crime, 49, 153n23; patient confidentiality imperative and, 46–48, 50, 51, 53, 54, 152n17, 152n20; percentage of Salvadorans who go to private doctors, 50–51; poor women’s options for medical care, 51; portrayal of medical confidentiality as a commodity, 50, 53; reporting by private versus public hospitals, 50, 153n26; sources of reports triggering prosecutions, 49–50, 52