Of the many things dividing the United States, none seems more salient than the divide between pro-life and pro-choice forces. At the heart of the dispute is an assumption that, if Roe is reversed and abortion becomes illegal, things will change.
We talk about banning abortion as if we all understand how things will change if abortion becomes a crime. On both sides, we invoke naive generalities and obsolete references when imagining post-Roe America. The coat hangers, staple features of pro-choice protesters, suggest that women will die if abortion becomes illegal. And the pro-life slogan, “Stop abortion now,” seems to assert that making abortion illegal will stop women from having them.
These vague suggestions do not serve us well. Rather, they impede clear thinking about what will happen if states are permitted to make abortion illegal. A variety of legal issues will be set in motion by permitting states to criminalize abortion, many of which arise from the fact that, even without Roe, abortion will remain legal in many states around the country.
After considering how Roe’s demise would alter, but not halt, women’s access to legal abortion in the United States, I turn to the issue of abortion law enforcement. Making abortion a crime is actually more a question than an answer. If abortion is a crime, who are the criminals?
As we reflect upon the way in which laws against abortion matter, the experiences of other countries have much to teach us. You already know a good deal of these lessons, having taken this journey with me. You’ll remember Beatriz, whose illness and doomed fetus illuminated the ways in which symbolic laws get tested by hard facts. You’ve met Christina and the other Salvadoran women serving long prison sentences for crimes they did not commit.
Questions of abortion law enforcement are clear: who will we target for punishment, and who will we actually catch? The choices we face, as we look to abortion crimes, are surprisingly obvious, and the consequences are as disturbing as they are predictable.
Judging from how we fight over Roe, you might think that if Roe were overturned, it would be impossible to get a safe, legal abortion in the United States. The truth is otherwise: those with enough time and money will find it easy to obtain a legal abortion, regardless of the laws in their home state. This is because abortion will remain legal in many US states, regardless of the Supreme Court’s position on the matter.
Let me explain. Back in 1972, every state had its own laws about abortion. Most states made it a crime, but included some exceptions, such as in cases where the mother’s life or health was at risk. A few states—New York, Washington, California, and Hawaii—had recently legalized abortion, permitting it for any reason, before viability. Rather than “legalizing” abortion, the Supreme Court’s 1973 decision in Roe effectively told the other forty-six states they needed to do so, too.
Talk about the law making a hard shove! By finding that a woman has a constitutional right to privacy under the Fourteenth Amendment, the court overturned the criminal laws of forty-six states.1 Any decision that reverses Roe must begin with a reconsideration of the scope of the constitutional right to privacy.
Roe v. Wade used the concept of fetal viability as the outer limit on a woman’s right to privacy. A woman has a broad right to abortion, as a matter of her private choice, before the point at which the fetus is viable. If the fetus is not yet capable of living outside the woman’s body, abortion is permissible. If the fetus could survive independently, however, she can no longer abort it.
There was no axiomatic reason for picking viability as the dividing line, though. The court might just as easily have drawn the line earlier or later in pregnancy. And in the absence of Roe, a state might well choose some other cutoff point along the gestational path. Indeed, several states have passed laws banning abortion any time after one can hear a fetal heartbeat. Although these laws cannot currently take effect because Roe still protects a woman’s constitutional right to abortion, they hint at how some states might want to restrict abortion if Roe falls.
Even if the Supreme Court reverses itself and decides that the Constitution no longer protects a woman’s right to abortion, though, it still will need to set limits on how states frame their abortion laws. For example, it is clear that no state could ban abortion completely. No state could force a woman to continue a pregnancy that poses a threat to her life because the Constitution guarantees a woman’s right to life. Unlike in El Salvador, where the country’s constitution declares a right to life from the moment of conception, nothing in our Constitution recognizes an absolute “right to life” for the fetus. And there’s little chance of this changing any time soon: Constitutional amendments are exceptionally hard to pass, requiring approval not just by both houses of Congress, but also ratification by a majority vote in three-quarters of the states in the country.2
If the Supreme Court reverses Roe, then, the open question is how far the court will allow states to go. Will it narrow a woman’s privacy right to some earlier point in pregnancy, or will it jettison the privacy right altogether, permitting states to dictate the circumstances under which abortion will be allowed?
It’s worth playing out the tape on the most extreme case, just to see how much it would matter. Let’s imagine that the Supreme Court goes so far as to permit states to ban abortion except when a woman’s life is at risk. How many states would subsequently enact such bans?
When I asked a pro-life Oklahoman state senator what would happen if Roe v. Wade were reversed, he sighed and said, “It will be a bloodbath on the right.” Pro-life communities will be forced to reckon with the disparate views of their constituents, the vast majority of whom want to keep abortion legal in cases of rape, incest, and fetal anomaly. If Roe falls, there will be a furious battle over how to frame the crime of abortion.
But not all states will be fighting. Perhaps the most important thing to remember when thinking about America after Roe is that not all states will choose to criminalize abortion. Even without Roe, abortion will remain legal in as many as half the states. This fact often gets lost in the contentious debates over the Supreme Court’s rulings on abortion. In a number of states around the country, the Supreme Court position doesn’t make a difference. Many states are safely pro-choice, with judicial decisions interpreting state constitutions as protecting a woman’s right to privacy, and large majorities favoring legalized abortion.3
If Roe v. Wade is reversed, it is clear that the battle over abortion laws will not end. Instead, while pro-life states struggle to determine the scope of laws restricting abortion, elsewhere, abortion will be legal. As a result, it is fair to say that the most significant barrier to abortion, in a world without Roe v. Wade, will be wealth: how much will an arbortion cost and how far must one travel in order to get one?
We already know what happens when abortion becomes a crime. Women with money get abortions by traveling to places where it is legal. Remember what I told you about Chile, where I met Marina, who told me, “The rich women fly to Miami. Women like me stay here.”4
“Abortion tourism,” as it is known, happens here, too. In 1972, the year before Roe, when abortion was legal in only four states, a review of medical records shows that 40 percent of abortions were performed on women who came from out of state.5 Even today, when abortion is legal in all fifty states, women travel in order to avoid local abortion restrictions. For example, in 2014, New Mexico’s Department of Health data revealed that around 20 percent of the forty-five hundred women who got abortions there came from out of state.6 And with a number of states now banning abortion after the twentieth week of pregnancy, many women face legal barriers to abortion when second trimester tests reveal a severe fetal anomaly. In such cases, women often travel to states like California or Colorado, where the law permits abortions, on limited grounds, through the twenty-eighth or even thirtieth week of pregnancy.7
If abortion remains legal in even one state, it will be available to any woman who can get to that state. This guarantee is built into the structure of our federal system, through the Constitution’s Privileges and Immunities Clause, which forbids a state from treating citizens of other states in a discriminatory manner.
Nor can states readily stop their own residents from leaving home in order to get an abortion. The Constitution guarantees the right to travel freely between the states; a state cannot stop a woman from leaving home, even if it knows she’s intending to evade its laws.8
In effect, if abortion becomes a crime, there will be two laws: one for those who can afford to travel and one for those who cannot. No one believes that women will stop having abortions, simply because they are illegal.
Abortion rights sympathizers use the symbol of the coat hanger to call to mind the thousands of women who died from illegal abortions in the years before Roe v. Wade. In the decades leading up to the legalization of abortion, an estimated five thousand American women died that way, every year. Make abortion a crime, and the assumption is that we will once again see hospitals filled with women dying from illegal abortions.
A different story emerges when one takes a close look at the mortality rates in countries worldwide today in which abortion is either banned or permitted only to save the mother’s life. Consider Latin America, where the vast majority of countries have restrictive laws against abortion. There are approximately 4.6 million illegal abortions in Latin America every year. In 1990, researchers estimated an abortion mortality rate of 30 deaths per 100,000 live births. By 2008, the rate had dropped to 10.
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.
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.
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.
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
On appeal, the Indiana appellate court overturned Patel’s conviction for feticide, finding that feticide laws did not apply to pregnant women, but only to third parties. However, the court upheld her conviction on the lesser charge of neglect of a child.37
The debate over Patel’s case has much to teach us about how women might come to be prosecuted if abortion becomes a crime. Prosecutions will be reserved for exceptional cases—those in which the woman does not seem like a second victim to the prosecutor. And the most important factor in determining whether a woman will be seen as abortion’s second victim is whether there is someone else to view as the perpetrator.
Consider how we might have responded to Patel if, rather than taking illegal abortion drugs, she had been given an abortion by her best friend Fay, a medical technician who had advised Patel about buying the drugs. If Fay had performed an abortion on Patel, I suspect the law would have viewed Fay, rather than Patel, as the perpetrator. How could she have preyed upon her trusting, vulnerable friend? How did she overlook the possibility that Patel’s pregnancy was too far along? She jeopardized Patel’s life.
With Fay cast as the perpetrator, it would have been possible to see Patel as a second victim, as an innocent woman whose life was endangered at the hands of the real monster. If there is a moral justification for punishing a woman who induces her own abortion, but not one who hires another to do so for her, it is not clear to me.
The second and more important lesson we learn from Patel’s case is that individual actors, rather than official policies, determine whether and how the law is enforced. The decision to report Patel to the police, the decision to prosecute her for a homicide offense—these were judgment calls made by individual doctors and prosecutors.
Paltrow and Flavin’s forty-year study of pregnancy crimes demonstrates that Patel’s case was not unique in this regard. Instead, these cases demonstrate a dramatic pattern of selective law enforcement. Although women have been charged with pregnancy-related crimes in forty-four states and the District of Columbia, more than 50 percent of these prosecutions were in the South. One state, South Carolina, accounts for 93 of the 413 cases.38 Further analysis shows that “in individual states, cases tend to cluster in particular counties and sometimes in particular hospitals”:
[I]n South Carolina thirty-four of the ninety-three cases came from the contiguous counties of Charleston and Berkeley. Staff at one hospital, the Medical University of South Carolina, initiated thirty of these cases. In Florida twenty-five of the fifty-five cases took place in Escambia County. Of these, twenty-three came from just two hospitals: Sacred Heart Hospital and Baptist Hospital. In Missouri twenty-six of the twenty-nine cases came from Jackson County. Of these, twenty cases came from a single hospital: Truman Medical Center.39
This pattern of prosecution—one hospital, one county—speaks to individual crusaders, rather than careful policy making. And the resulting cases expose the most profound problem with this individualized exercise of legal power: it is unmistakably biased against the most marginalized women in society.
Paltrow and Flavin found that almost 60 percent of the 413 cases in their study involved poor women of color. Needless to say, this rate far exceeds their representative share of the population.40 In spite of overwhelming evidence demonstrating that pregnant women of all races and classes abuse drugs at similar rates, 84 percent of these prosecutions were brought against minority women charged with having used an illegal drug.41
Where are the white women?
For decades, doctors and prosecutors have used the force of law to sanction poor pregnant women and, particularly, poor women of color.42 We saw this pattern in El Salvador, where the women prosecuted in relation to abortion are overwhelming poor, uneducated, and rural. And we will see more of it here, among poor minority women, as we intensify abortion restrictions.
If history is any indication of what to expect should abortion become illegal, we will need to append an asterisk to the promise that women won’t be punished for abortion. The truth is, wealthy women will not be punished.
Poor women may be prosecuted, though—particularly minority women who seek care at public hospitals after attempting to end their own pregnancies. There won’t be many such prosecutions; most doctors will opt to maintain their patients’ confidentiality.
But we can be sure we will see some cases growing out of this scenario. We already have.
We started this chapter by recognizing the underlying questions one must ask about making abortion a crime: Will it stop abortions? If not, who will the law target, and who is it likely to catch?
We’ve seen the answers to these questions, hiding in plain view: abortion will remain legal in some states and, where it is not, illegal abortion will be prevalent.
We’ve seen enough to know that abortion prosecutions will be rare, and they will be set in motion not by an overarching policy but, rather, according to the moral sensibilities of individual actors. We’ve seen how these individual actors will tend to target the most marginalized women in society.
I haven’t yet mentioned the indirect consequences of banning abortion. There is more that we can predict will happen as a consequence of making abortion a crime. First, we’re likely to see a rise in births to teenagers. Compared to adults, teenagers are less likely to use contraception, and they are slower to recognize that they are pregnant. Once they are pregnant, teenagers have a hard time accessing illegal abortions. In addition to being younger, less educated, and more vulnerable in general, teens typically lack the money and the mobility necessary to get abortions on their own.
In El Salvador, the consequences of the abortion ban fall disproportionately on teenage girls. The country has one of the highest teen pregnancy rates in Latin America. Even as teen pregnancy rates are dropping in the United States and elsewhere worldwide, El Salvador’s rates are rising. A 2014 National Family Health Survey report notes that 23 percent of Salvadoran women ages fifteen to nineteen have had a child before age eighteen.43 There are serious long-term costs associated with teen motherhood, for the mother and child, and for society at large. Teen mothers are disproportionately likely to drop out of school. They are more likely than older mothers to raise their families in poverty, with negative consequences for the entire family’s health, education, and long-term stability.
Nor is teen motherhood the only consequence of the abortion ban for adolescent girls. In addition, where abortion is illegal, one finds elevated rates of suicide among pregnant teens.44 In El Salvador, hundreds of pregnant girls commit suicide every year.45 Indeed, suicide is the highest cause of death among the country’s pregnant girls.
There is every reason to believe we will see similar patterns among US teens in places where abortion becomes illegal. Although we are a wealthier country, the factors driving El Salvador’s teens to pregnancy, motherhood, and even suicide would be the same here. Here, too, teenagers will struggle to identify options when faced with an unplanned pregnancy. Here, too, teens are prone to catastrophic thinking. We can predict with certainty the news stories we’re likely to read, in places where abortion is illegal: rates of births to teens will rise, and on occasion, some of our poorest, most isolated pregnant teens will feel there is no way out but death.
So, what are we to make of these facts? How are we to weigh the significance of what we know will and won’t happen, if Roe falls and states can make abortion a crime?
It is important to remember Beatriz’s case in considering our answers. Those who morally oppose abortion derive an intangible, yet vitally important benefit from a law that reinforces their view. The law plays a significant role in helping to express collective values—to set as ideals, if not as norms, the things we hold to be true.
We saw the lengths to which El Salvador was willing to go in order to defend the principles embodied in its abortion ban. By permitting Beatriz to end her pregnancy, but only in self-defense—only when the threat of her death became imminent—El Salvador stayed true to its position that a fetus has the same rights as any other human being.
For many, many Americans, the idea that the law makes abortion legal, without qualification, is anathema. They will not rest easily until the law is aligned with their moral position.
In addition to resting more easily, abortion opponents believe that banning abortion may also have some deterrent effect on abortion rates. As we’ve seen, there’s no evidence in the aggregate to support the claim that banning abortion reduces abortion rates. Indeed, we’ve seen that abortion rates are actually higher in countries where it is illegal than in countries where abortion is legal. Still, it stands to reason that, by banning abortion, some women who otherwise would have aborted will carry their pregnancies to term. We just don’t know how many.
Which brings us back to Cass Sunstein’s admonition against fanaticism: The true test of a law’s validity lies in assessing not simply its message but also its impact.46
Is it worth it to you?
I can’t answer that question. But I am absolutely certain that you need to do so. It’s at the center of the only meaningful conversation to be had about abortion laws.