What has been the pattern abroad in countries banning abortion, along with the U.S. experience itself before Roe, predicts a complicated and uneven application landscape.
For years, as they struggled to undo Roe v. Wade, the leaders of the anti-abortion movement have stressed that prosecutions should focus on abortion providers and others who facilitate the procedure, rather than the person requesting it. But critics of the movement point to examples of when the criminal justice system has already turned, with Roe still in the books, against women whose pregnancies have been intentionally or inadvertently terminated.
In a 2018 case, for example, a Mississippi woman who was shot dead was charged with second-degree murder after authorities obtained data from her phone and found that she had been looking for abortion pills. (The case was withdrawn after prosecutors examined the evidence more closely, including the use of scientifically questionable evidence to allegedly determine whether the fetus had been born alive).
Because pregnancies that end in a natural abortion are often indistinguishable from those that are interrupted with a pill, women’s private data and the information they share with their medical staff may be armed by prosecutors. Even if the woman herself is not criminally liable, she can still be dragged through 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 actually punished, even though almost none of them were prosecuted and imprisoned for having an abortion,” said Leslie Reagan, a history professor at the University of Illinois Urbana- Champaign and author. of “When Abortion Was a Crime.” “This is through the methods of application: interrogating women who were looking for emergency services after having an abortion or trying to induce theirs.”
How abortion suspicions could be investigated
Whether filing a case under a state abortion restriction will ultimately be a decision for the local prosecutor, and the promise by some district prosecutors in democratically lean localities not to prosecute abortion offenses has made states reds explore other mechanisms to enforce bans.
But in places where law enforcement is trying to enforce abortion bans, medical staff offering treatment to women whose pregnancies have ended could also end up being a source of information for law enforcement officials. law.
In El Salvador, a country with an extremely aggressive approach to carrying out its ban on abortion, government officials are being sent to hospitals to stress to medical staff their obligation to report suspicions that a patient has intentionally put an end to According to Michelle Oberman, a professor at Santa Clara University Law School and author of “Her Body, Our Laws: On the Front Lines of El Salvador’s War on Abortion in 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 era of the United States, women seeking medical attention after abortions faced interrogations, Reagan said, including threats that “we will not provide the medical care you need urgently and urgently.” unless they cooperated with the investigations. .
Even now, the medical care women receive for terminated pregnancies can cause law enforcement to become involved, according to Dana Sussman, acting executive director of National Advocates for Pregnant Women. Sussman’s organization offers defense attorneys and other resources for people facing charges or investigations related to pregnancy and its outcomes. The organization has documented 1,700 arrests, prosecutions, arrests or forced medical interventions between 1973 and 2020 in women related to pregnancy or pregnancy outcomes, although most of these cases do not involve a loss of pregnancy. or an abortion.
If Roe is reversed, Sussman said, “I think there will be a lot more collaboration between health care providers and the police.”
The Health Insurance Liability and Portability Act, 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 these contexts, HIPAA protections will be more limited.”
Another common tactic the organization has seen in its work is that law enforcement use women’s personal data to find evidence.
“When you have someone who is losing a pregnancy and the police or prosecutors are trying to build a case where there was a self-managed abortion,” Sussman told CNN, “what they will look at is a person’s fingerprint. .. who they contacted and when and about what, what they were looking for, the purchases they made, the credit card bills “.
He predicted that this type of digital evidence “will be what prosecutors will need to make this distinction, if they are to try to distinguish between a miscarriage and a self-managed abortion.”
In the Mississippi case, investigators obtained an order to search the phone of Latice Fisher, a black woman who had suffered a fatal death at home in 2017. To file charges, they pointed to data showing that she had been looking for abortion pills. previously. pregnancy (there is no way to check medically if abortion medications are in the woman’s system after a miscarriage or stillbirth, as drugs usually metabolize faster than the time it takes to get pregnant). fetus to be expelled). To build the case against Fisher, investigators also relied on a test known as the “lung flotation test,” a controversial method of investigating allegations of infanticide dating back to the 17th century that has been discredited by many experts. doctors.
Fisher’s lawyers rejected the use of the “flotation test.” After prosecutors reviewed questions about the reliability of this method, as well as other allegations about Fisher that they found to be unsubstantiated, they dropped the original indictment. When they presented the case to the grand jury with more context around the evidence, the grand jury refused to file new charges against Fisher.
Laurie Bertram Roberts, co-founder of the Mississippi Reproductive Freedom Fund that helped defend Fisher, equated the use of Fisher’s Internet search investigators with a “thought crime.”
“Let’s say in two months, I’m thinking about having an abortion and I’m looking for things. And then I decide not to do it, and then I have a miscarriage at four and a half months,” Roberts told CNN. “That’s the risk, isn’t it? A lot of people think about having an abortion and then they don’t.”
Who will be the target of the prosecutions
Legal and historical experts on abortion bans also expect most of the application to fall on marginalized communities that already face the weight of the police, and some compare that to the war on drugs.
“The chances of getting caught in this police network will be higher for people of color and for people with lower incomes,” Reagan said.
Oberman said that in his research on El Salvador’s extremely robust enforcement approach, there were only about 10 convictions a year, compared to about 30,000 abortions that occur annually in the country. He said that a woman’s background is what the authorities in El Salvador will look at to discern whether her pregnancy ended naturally or was intentionally terminated.
“In these cases, doctors often suspect patients whose history would suggest reasons for wanting an abortion,” he said, such as rape victims, single mothers or those living in gang-infested territories where their personal safety is at risk. . “The cases that are being reported are those against the poorest and most marginalized people in society. And the cases where prosecutors are advancing are in the same way those in which they can tell a story about the reason.”
Local prosecutors who break the law
Anti-abortion activists say they have been consistent in their approach to not pointing out criminal laws against abortion to the woman who gets the abortion, and that the directive will remain in the lead if Roe is overturned.
“I know we have seen at virtually every level, with very few exceptions, a real commitment from lawmakers to make it clear that women cannot be prosecuted,” said Katie Glenn, government adviser to the anti-abortion group. Americans United for Life.
Jason Rapert, an Oklahoma lawmaker who sponsored a “detonating” abortion ban that will take effect in the state if Roe is repealed, rejected the idea that women will be attacked, calling the concerns of “a new fake flag being launched just to raise an issue.”
When asked how researchers will determine if a miscarriage was natural or a medical-induced miscarriage, Rapert said, “You’re also talking about the person’s honesty.
“And I think people will be able to discern what is a miscarriage and what is not,” Rapert, who is also the founder and president of the National Association of Christian Legislators, told CNN.
While lawmakers will have to write anti-abortion laws that they hope will end the proceedings, enforcement of those laws will ultimately fall to local prosecutors.
Texas County Attorney Starr has drawn national attention this year for attempting to charge a woman with murder for her self-induced abortion, despite the exemption from Texas law for “conduct committed by the mother of the unborn child.” . The prosecutor’s office said he was stepping down after a review of Texas law.
“In Starr County, the prosecutor initially, and those who initially took office, misunderstood and misapplied the law,” said John Seago, legislative director of Texas Law of Life. “And that’s possible, but that’s possible with …