How would an abortion ban be enforced if Roe v. Wade was reversed

What has been the pattern abroad in countries outlawing abortion, combined with the United States’ own experience prior to Roe, sees a complex and unequal enforcement landscape.

For years, as they fought to overturn Roe v. Wade, leaders of the anti-abortion movement emphasized 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 a time when the criminal justice system – with Roe going on in the books – has already been run on women whose pregnancies have been intentionally or unintentionally terminated.

In one case in 2018, for example, a Mississippi woman who had experienced a stillbirth was charged with second-degree murder after authorities obtained her phone data and found that she had searched for abortion pills. (The case was later dropped after prosecutors took a closer look at the evidence, including using a scientifically questionable test to determine whether a fetus was born alive.)

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Because pregnancies that end in natural miscarriages are often indistinguishable from pregnancies that terminated with the pill, the woman’s private data and the information she shares with her medical staff is likely to be used by prosecutors. Even if the woman herself is not criminally responsible, she may still be dragged through the law enforcement process as part of prosecutors’ efforts to investigate whether her pregnancy was unlawfully terminated.

“When Abortion Was a Crime,” said Leslie Reagan, professor of history at the University of Illinois, Urbana-Champaign, and author of the book From When Abortion Was a Crime. “And this is through the methods of implementation: interrogation of women who were seeking emergency services after they had an abortion or attempted to induce an abortion.”

How can suspicions of miscarriage be investigated?

A decision to file a case under state abortion restrictions will be a decision In the end to the local prosecutor, A promise by some district attorneys in Democratic-leaning areas not to prosecute abortion crimes has prompted red states to explore other mechanisms to enforce the ban.

But in places where law enforcement officials seek a ban on abortion, medical staff providing treatment to women whose pregnancies have ended may also end up becoming a source of information for law enforcement officers.

In El Salvador, a country with a very aggressive approach to implementing a ban on abortion, government officials are dispatched to hospitals to assure medical staff of their obligation to report a suspicion that a patient has intentionally terminated a pregnancy, according to Michelle Opperman, a professor of law at Santa Clara University and author of ” Her Body, Our Laws: On the Front Lines of the Abortion War from El Salvador to Oklahoma.

Oberman said doctors have been told that “if they do not report these women, they themselves could be subject to fines and other penalties.”

Reagan said that in the pre-Roe era in the United States, women who sought medical care after abortion faced interrogations, including threats that “we will not provide the medical care that you urgently and urgently need” unless they cooperate with the investigations. .

So far, the medical care women receive for terminated pregnancies could lead to law enforcement intervention, according to Dana Sussman, acting executive director of Pregnant Women Advocates. Sussman provides defense attorneys and other resources for people facing charges or investigations related to pregnancy and its outcome. The organization documented 1,700 arrests, trials, detentions or coerced medical interventions between 1973 and 2020 on women in relation to pregnancy or pregnancy outcomes, although the majority of these cases did not involve pregnancy loss or miscarriage.

If Roe were reversed, Sussman said, “I think there would likely be a lot of collaboration between health care providers and the police.”

Sussman noted that the Health Insurance Portability and Accountability Act—the 1996 law also known as HIPAA that sets privacy standards to protect patients’ personal medical information—has exceptions for law enforcement purposes. “As we expand the ways in which criminal law is applied in these contexts, HIPAA’s protections will be even more limited.”

Another common tactic the organization has seen in action is law enforcement using women’s personal data to find clues.

“When you have someone who has experienced a pregnancy loss and the police or prosecutors try to bring a case that they have a self-managed abortion,” Sussman told CNN, “what they will look at is the digital footprint… the people they contacted, when and about what, what they searched, the purchases They’ve made credit card bills.”

She predicted that this kind of digital evidence “would be the thing that plaintiffs would need in order to discriminate, if they were to attempt to distinguish between abortion and self-abortion.”

In the Mississippi case, investigators obtained a warrant to search the phone of Lattis Fisher, a black woman who experienced a stillbirth in her home in 2017. To file charges, they cited data showing that she had searched for abortion pills earlier. pregnancy (there is no way to medically test whether medical abortion drugs are present in a woman’s system after a miscarriage or stillbirth, Since the drugs are usually metabolized more quickly than the time it takes for the 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 for investigating allegations of infanticide dating back to the 17th century that It has been vilified by many medical experts.

Fisher’s lawyers refused to use the “buoyancy test.” After prosecutors reviewed questions about the reliability of this method, as well as other allegations about Fisher that they found unconfirmed, they dropped the original indictment. When they brought the case before a grand jury with more context about the evidence, the grand jury refused to bring new charges against Fisher.

Laurie Bertram Roberts, the co-founder of the Mississippi Fund for Reproductive Freedom who helped defend Fisher, equated investigators’ use of Fisher’s internet search as an “intellectual crime.”

“Let’s say I’m two months old, thinking about having an abortion and looking for things,” Roberts told CNN. “And then I decided not to, and then I have a miscarriage at four and a half months.” “That’s the risk, isn’t it? A lot of people think about having an abortion and then don’t.”

Who will be targeted for prosecution?

Legal and historical experts on the abortion ban also expect the bulk of enforcement to fall on marginalized communities already facing the brunt of policing — and some compare it to the war on drugs.

“The probability of being caught in this police network will be higher for people of color and on low incomes,” Reagan said.

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Oberman said that in her research on El Salvador’s very stringent enforcement approach, there are still only about 10 convictions per year, in the face of an estimated 30,000 miscarriages that occur annually in the country. She said the woman’s background is what authorities in El Salvador will look at to determine whether her pregnancy ended naturally or was intentionally terminated.

“Physicians in those cases tend to be suspicious of patients whose story might suggest reasons for wanting an abortion,” such as rape victims, single mothers or those who live in gang-infested areas where their personal safety is at risk, she said. “The cases that are reported are those that are directed against the poorest and most marginalized people in society. The cases that prosecutors come forward are those where they can tell a story about the motive.”

Local prosecutors who broke the law

Anti-abortion activists say they have been consistent in their approach by not directing criminal anti-abortion laws to women who get abortions, and that the directive will remain at the fore if Roe is repealed.

“I know we’ve seen a lot across the board, with very few exceptions, a real commitment from lawmakers to make it clear that a woman can’t be prosecuted,” said Katie Glenn, government affairs advisor for the anti-abortion group. Americans United for Life.

Jason Rapert, the Oklahoma legislator who sponsored the ban on “operated” abortion that would take effect in the state if Roe was repealed, dismissed the idea of ​​targeting women, calling these concerns “a new pseudoscience being brought up just to make an issue.”

Asked how investigators would determine whether a miscarriage was natural or a miscarriage with medical causes, Rabert said: “You also speak of the person’s honesty.

“I think people will be able to discern what is an abortion and what is not,” Rabert, who is also founder and president of the National Association of Christian Legislators, told CNN.

While it is up to lawmakers to write the anti-abortion laws they hope to end the procedure, enforcement of those laws will ultimately fall to local prosecutors.

Texas Star District Attorney Attracted national attention This year for attempting to charge a woman with murder for her self-abortion, despite an exception in relevant Texas law for “conduct committed by the mother of an unborn child.” The attorney general’s office said it dropped the charges after reviewing Texas law.

“In Star County, the attorney general, and those who initially laid the charges, misunderstood and misapplied the law,” said John Sego, legislative director for Right to Life in Texas. “And it is possible, but it is possible with any crime.”