The Year in Abortion: Criminalization
The Year in Abortion: Criminalization
The punishment is the point
“The Year in Abortion: Criminalization” is one article in a multi-part series examining abortion rights in 2023. To read the first part, click below:
Let’s be clear: Republicans aren’t interested in stopping abortions or saving ‘babies’—they simply want to hurt those who would see women be free. The punishment has always been the point.
And despite assurances that they have no interest in targeting abortion patients, the GOP worked overtime this year to ensure that women who have the temerity to decide their own lives and futures be punished for it.
A Nebraska teenager who self-managed her abortion. An Ohio woman prosecuted for flushing her miscarriage. Story after story this year proved just how much the GOP plans to make examples of the most marginalized among us.
But criminalization in 2023 went far beyond individual punishment—the broader goal is to stop us from helping each other in a moment when help is needed most. There were bills to ban pro-choice websites, local ordinances that made lending someone money or sharing information about abortion illegal—even a law in Idaho that would punish professors with prison time for “promoting” abortion.
These aren’t empty threats. There’s a reason we’re warning women not to use period tracking apps, or advising them to use VPNs when searching for an abortion clinic—the danger is very real. What’s difficult, though, is keeping people safe without peddling in scare tactics. Because that fear is central to the GOP’s plan.
Republicans want us to be afraid: too scared to help each other, too anxious to share our abortion plan with a friend—too scared, even, to get medical help when we need it. And that’s what really breaks my heart: They’ve criminalized community.
There are so many nuances to how criminalization works, so as comprehensive as this overview is, I’m sure it’s not complete. Please feel free to share stories, links, advice and anything else I’ve missed in comments. And thanks, as always, for the support.
They’re Enjoying This
For people who claim that they don’t want to punish abortion patients or individual women, Republicans sure spent a lot of time this year doing just that. If 2023 showed me anything, it’s that women were never collateral damage—but the target. The GOP isn’t just content to punish us, they’re desperate to.
We’ve watched as pregnant women in Alabama, for example, were arrested and jailed in order to ‘protect’ their fetuses. How the state could claim they were ‘protecting’ pregnancies while forcing women to sleep on jail floors and give birth in showers is beyond me. But Republican hypocrisy has been astounding across the country: In South Carolina, for example, Gov. Henry McMaster claimed that “no one that I know wants to criminalize women” just weeks after a woman was arrested for taking abortion medication.
We also saw Republicans in multiple states this year introduce and support legislation that would send abortion patients to prison. In February, Abortion, Every Day broke the news that South Carolina Republicans were introducing a bill that would make having an abortion punishable by the death penalty. And the state was far from alone. In fact, there was one point that same month when Republicans in Kentucky, Alabama, South Carolina and Georgia were all debating bills that would classify abortion as homicide, and make it punishable as such.
Several of those bills would have also made emergency contraception and IUDs illegal by defining pregnancy as starting at fertilization—a tactic Republicans have been spent years laying the groundwork for. Language targeting birth control made it into proposed legislation across the country this year, like this bill in Missouri. AED also flagged 2023 legislation, like these bills in Alabama and Arkansas, that would allow women to be charged with murder if they were found to have ‘caused’ their miscarriages.
As I’ve said before (and you know I’ll keep repeating it), even if these bills didn’t go anywhere, they still matter. Legislation like this becomes more normalized every single time Republicans re-introduce it. That’s the point.
When they can’t officially prosecute women for abortion, conservatives will find another way to dole out punishment. This year, for example, a teenager in Nebraska was sentenced 90 days in jail for self-managing an abortion—though Republicans and the anti-abortion movement would never describe it that way. Instead, they say the girl was prosecuted for how she handled the fetal remains: she pled guilty to “concealing or abandoning a dead body.” But as you know by now, this is a oft-used criminalization tactic.
Research from Pregnancy Justice and If/When/How show that prosecutors will bring seemingly unrelated charges against women in order to punish them for their pregnancy outcomes while claiming it has nothing to do with abortion.
That’s what Alabama Attorney General Steve Marshall was going to do before Abortion, Every Day revealed his strategy: the Republican planned to get around the state’s prohibition on charging abortion patients by prosecuting women who took abortion medication with ‘chemical endangerment’—a law meant to punish those who expose children to drugs. (Thanks to AED’s story, Marshall was forced to reverse his decision just two days later.)
We saw a similar tactic this year in Idaho, where lawmakers passed an ‘abortion trafficking’ law. In the state’s first case targeting a mother and son who brought a teen out-of-state for an abortion, prosecutors didn’t bring ‘abortion trafficking’ charges specifically—instead they used the language of the statute while charging them with a different crime.
Law professor Greer Donley told The Cut this was in part because the ‘abortion trafficking’ law was being challenged in court. “I think the idea is that even if a judge temporarily enjoins that law, they still want to be able to move forward with the prosecution,” Donley said.
Again and again, conservatives reveal just how eager they are to punish.
A Culture of Fear
How do they get away with it? Not only by the punishment itself, but the fear of punishment.
Anti-abortion legislators and activists know that the chilling effect of their policies do their hardest work for them. Who needs to enforce abortion bans when people are too afraid to break them? I cannot begin to tell you how many young women have reached out to me this past year to ask if they can be arrested for ordering abortion medication, or for helping a friend leave the state. That is by design.
If you need legal advice, contact If/When/How’s free Repro Legal Helpline: 844-868-2812
These people want us to be too scared to help each other. They want doctors to be afraid of losing their licenses if they end a doomed pregnancy. They want pro-choice groups to beg off supporting their community for fear of legal liability. The anti-choice movement even wants teachers to be too afraid to speak about abortion.
Worst of all, this culture of fear forces people, in their most vulnerable moments, to go at it alone. I will never forget talking to the young woman in Texas who didn’t tell one friend or family member that she was traveling to New Mexico for an abortion, even though her pregnancy was doomed and dangerous. She was so afraid of arrest and stigma that she and her boyfriend didn’t dare stop at an emergency room on the long drive home, despite her worsening condition.
The thing is, she was right to be afraid. The Nebraska teen prosecuted for her abortion was turned in by someone she knew. Brittany Watts, prosecuted in Ohio for how she handled her miscarriage, was turned in by a nurse who had rubbed her back in sympathy. (When people are turned in for abortion, it’s most often a health care provider who does it.)
As I wrote in my February column about snitch culture, these laws embolden the worst kind of people and the lowest type of behavior.
“Anti-choice legislators and activists know that for every friend or family member willing to support a woman through an abortion, there’s someone in her life—an abusive ex-boyfriend, an estranged mother-in-law—eager to use the power of the state to punish her or anyone who helps her.”
We watched in Texas this year as a woman’s abusive ex-husband sued the friends who helped her obtain abortion medication. And we saw how 19 Republican Attorneys General fought for access to the medical records of those who leave the state for abortions. Again and again, it’s clear there’s good reason to be afraid.
In January, for example, a Tennessee lawmaker introduced legislation that would have added a rape and incest exception to the state’s ban, but with this caveat: making a false report “in order to obtain an abortion” would be a felony punishable by a minimum of three years in prison. (If that wasn’t enough, there was an added requirement that the woman serve the full sentence.)
As I wrote at the time—what constitutes a ‘false report’ is up for debate. Women across the country have been accused and arrested for making false reports simply because a police officer didn’t believe them, or because they recanted the accusation after being pressured by their attacker or law enforcement. The point was to add in an exception that women would be too terrified to use.
To Republicans, the fear is just as important as the legislation itself. For pro-choice groups—or people like us, individual activists—the challenge is being realistic about this very real danger, while not contributing to a culture of fear. It’s a tightrope walk.
If you made it this far, I know you really care about abortion rights. If you’re finding this overview of the year in criminalization helpful, consider supporting Abortion, Every Day with a subscription:
Media Enablers
The other way Republicans are getting away with criminalization is by relying on lies and abortion stigma—framing that’s often repeated by mainstream and local media. When Brittany Watts was arrested for flushing her miscarriage, local outlets repeated false and inflammatory accounts from prosecutors. They claimed that the fetal remains were so large Watts’ toilet got clogged and had to be removed; the idea was to make her sound as callous, and the details as salacious and horrifying, as possible.
It’s not a coincidence, either, that Watts is Black. Women of color, Black women in particular, aren’t only criminalized at massively disproportionate rates—they’re also much less likely to get sympathetic media coverage.
The truth was that Watts miscarried at home after being denied care by a religiously-affiliated hospital. When she went back to the hospital after the miscarriage, a nurse called 911 and police took her toilet apart to search for the fetal remains. This is a woman who was failed again and again—and then had reporters lie about her in some of the most horrific ways possible.
Something similar happened with the Nebraska teenager. As I wrote in July, multiple local and national publications reported that the girl wrote in her Facebook messages “about how she can’t wait to get the ‘thing’ out of her body.” That just wasn’t true. She never wrote or said those words. The language was actually a police officer’s interpretation of the teenager’s conversation—but when media outlets covered the story, they put those incendiary words in her mouth.
In addition to misinformation and stigma, there are other, just as dangerous, ways that the media can enable criminalization—like taking law enforcement’s word for it when covering a story. It makes sense that reporters look to criminal complaints or police reports for information about a case, but they can’t rely on them as fact—especially when you’re talking about an abortion- or pregnancy-related case. Yet I’ve seen it happen again and again this year. (When a teen boy and his mother were arrested for taking his girlfriend out-of-state for an abortion, for example, journalists who should know better insisted this wasn’t about ‘abortion trafficking’ because the prosecutor said so.)
Targeting Abortion Funds
Another troubling criminalization trend this year was the obsession with prosecuting the groups and activists who help people get abortion medication or leave their states for care. In other words: they’re going after the helpers.
Texas Republicans, for example, introduced legislation to make pro-choice websites illegal—specifically naming organizations that ship abortion medication. The bill also would have allowed the state to charge abortion funds using the RICO Act, a law meant for organized crime rings.
The travel bans passed in multiple Texas counties were also written to target abortion funds and pro-choice groups. These so-called ‘trafficking’ ordinances would allow civil suits to be brought against anyone who helps someone get an out-of-state abortion—and not just those who physically bring a patient out of Texas. Anyone who lends a woman money, recommends a clinic, or provides logistical help could be in the law’s crosshairs. Who does all of those things? Abortion funds, of course.
One of the country’s biggest dangers to funds is anti-choice lawyer Jonathan Mitchell, architect of the Texas bounty hunter mandate, which targets those who ‘aid and abet’ abortion. Mitchell launched a legal harassment campaign against the groups this year, seeking out the names and information of thousands of patients, staff, volunteers and donors. What’s important to remember is that these efforts aren’t just a danger to Texas pro-choice groups: Mitchell’s work is meant to be a model for anti-abortion activists everywhere.
Take Idaho’s ‘abortion trafficking’ law, which makes “recruiting, harboring, or transporting” a minor for an abortion illegal. What counts as ‘recruiting’? Helping fundraise for a teenager’s abortion? Giving them the url to a clinic website?
The language of the law is deliberately vague—it allows a zealous prosecutor to do what they want with it. That’s why who gets to interpret laws is such a key part of criminalization. (It’s also why, as I wrote yesterday, Republicans are eager to remove district attorneys who decline to prosecute abortion cases.)
What’s Next?
With all the horror we saw this year in criminalization, I’m grateful for the organizations, activists and politicians working to stop it. (Or, at least, lessen its impact.) We’ve watched groups like Pregnancy Justice take on case after case, for example, and legislators fight to ensure that their states have laws to protect abortion providers and patients from out-of-state prosecutions. These are vital contributions: Shield laws have allowed doctors in certain states to mail abortion medication to places with abortion bans without the overwhelming fear of arrest. And the groups helping individual women being prosecuted are invaluable.
We also saw groups like STOP (Surveillance Technology Oversight Project) this year highlight the ways in which law enforcement can track abortion and gender-affirming care using social media and automated license plate readers (ALPR)—giving us a framework to develop better safety habits. And digital privacy organizations like the Electronic Frontier Foundation fought to stop pro-choice states from handing over data that could be used to prosecute someone for an abortion-related ‘crime’ elsewhere.
All of which is to say: There are people doing important and forward-thinking activism in this area, and while we have our work cut out for us—we also have reason to hope.
Yes, Jonathan Mitchell is dangerous but at this point he’s gone from intimidating to an eye roll. 🙄 He got countersued in the Silva case and according to an attorney I talked with he can only find sketchy jerks as clients.
This is what Idaho Family Policy Center thinks about the success of the abortion bans and what they are going to work on next...
it is just as Jessica predicted.
https://idahofamily.org/wp-content/uploads/2024/01/IdahoAbortionLawsWork_Jan5.pdf