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The elimination of cash bail, the decriminalization of drugs and petty theft offenses, and sentencing reform have recently shifted the criminal justice landscape throughout the United States. Nonetheless, a new threat of over-prosecution and incarceration looms large in the, perhaps, unexpected realm of reproductive rights.
According to Planned Parenthood, nearly 600 abortion restrictions have been introduced in state legislatures this year alone—and more than ninety have become law. While some of these laws do include criminal penalties, all of them make getting an abortion nearly impossible for most people and they set the stage for broader, more restrictive laws in the future.
In a post-Roe protection world, access to abortion will be limited to states where this right has been recognized as law.
Even without laws that ban abortion completely, pregnant people have been targeted for arrest and prosecution. The organization, If/When/How: Lawyering for Reproductive Justice, tracked at least twenty-one people across the United States who faced arrest for self-managing an abortion or helping someone who self-managed an abortion. Hundreds more have been arrested for experiencing miscarriages.
It’s likely that, sometime in the next few months, the conservative-majority U.S. Supreme Court will affirm Mississippi’s fifteen-week abortion ban. This could result in Roe v. Wade being significantly weakened or entirely struck down. And if that happens, twenty-two states are poised to ban abortion outright.
It is not mere hyperbole to fear the demise of Roe v. Wade. It would thrust this country backward in time, to the days of “back-alley abortions” and to a time when health care professionals—fearing arrest and prosecution—served as the state’s investigators. Back, also, to a period of surveilling people on the progress of their pregnancy and watching for their use of drugs or alcohol.
A recent study by the National Association of Criminal Defense Attorneys highlights a wave of expansive prosecutions that will likely follow any curtailment or reversal of Roe v. Wade. State laws that redefine “personhood” to include “an unborn child,” will expand the scope of criminal liability for offenses such as homicide, feticide, and aggravated assault.
These “personhood” laws, which grant unborn children full legal rights, could be used as the basis for severe charges against those accused of violating abortion bans. States could make use of existing statutes—including those covering conspiracy, attempt, and accomplice liability—to charge anyone associated with an abortion, too. This could even extend to individuals who counsel a pregnant person or fund, schedule, or otherwise assist them in the process of obtaining an abortion.
“This report reveals that the ‘War on Abortion Rights’ not only undermines the Bill of Rights but also represents an attempt to legislate the will of a few on the lives of the many, especially the poor and the vulnerable, who will have no real choices, unlike the wealthy,” says Martín Antonio Sabelli, president of the National Association of Criminal Defense Attorneys. “We should learn from our mistakes and resist the overly broad use of criminal penalties to regulate disfavored personal choices that will open the door wide to a new wave of mass incarceration.”
In a post-Roe protection world, access to abortion will be limited to states where this right has been recognized as law. Short of changing the composition of state governments to create pro-choice legislatures, proponents of reproductive choice living in states without abortion rights will have to find creative ways to resist the laws that would put a pregnant person—or their supporters—behind bars for ending an unwanted pregnancy.
Educating people about their choices and providing accessible family planning services is a good start. But for those who find themselves in need of immediate help in obtaining a safe abortion, more concrete steps are necessary.
Linked networks of sympathetic supporters that have already cropped up in some areas will need to be expanded. Dubbed the “Overground Railroad,” a reference to the Underground Railroad that abolitionists used to free Black people from slavery in the South, these networks help people with transportation, expenses, access, and a place to stay.
On the policy level, proactive measures can be taken to neutralize the impact of the criminalization of abortion. States can authorize funds directly to those who cross state lines seeking sanctuary and reimburse organizations that provide counseling and assistance to people in need.
Without the protections provided by Roe v. Wade, many states will continue to pass laws that have the potential to exacerbate the national crisis of overcriminalization and mass incarceration—laws that could subject people seeking abortions to extreme criminal penalties, including the death penalty, with people of color and those living in poverty at the greatest risk.
At a moment in history when the benefits of safe and legal abortion are well documented and the majority of the U.S. population support legal access to abortion, we are now faced with the incongruous reality of the expansion of laws that criminalize abortion and control the behavior of pregnant people.