For decades, the mainstream anti-abortion movement promised that it did not believe women who have abortions should be criminally charged. But now, Republican lawmakers in several US states have introduced legislation proposing homicide and other criminal charges for those seeking abortion care.
The bills have been introduced in states such as Texas, Kentucky, South Carolina, Oklahoma and Arkansas. Some explicitly target medication abortion and self-managed abortion; some look to remove provisions in the law which previously protected pregnant people from criminalization; and others look to establish the fetus as a person from the point of conception.
It is highly unlikely that all of these bills will pass. But their proliferation marks a distinct departure from the language of existing bans and abortion restrictions, which typically exempt people seeking abortion care from criminalization.
“This exposes a fundamental lie of the anti-abortion movement, that they oppose the criminalization of the pregnant person,” said Dana Sussman, the acting executive director of Pregnancy Justice. “They are no longer hiding behind that rhetoric.”
Some members of the anti-abortion movement have made it clear the bills do not align with their views, continuing to insist that abortion providers, rather than pregnant people themselves, should be targeted by criminal abortion laws.
“[We] oppose penalties for mothers, who are a second victim of a predatory abortion industry,” said Kristi Hamrick, the chief media and policy strategist for Students for Life of America. “We want to see a billion-dollar industry set up to profit by preying on women and the preborn held accountable. The pro-life movement as a whole has been very clear on this.”
A spokesperson for Susan B Anthony Pro-Life America echoed the same sentiment: that the organization unequivocally rejects prosecution of the pregnant person.
The bills are likely to be controversial as they proceed, even within conservative circles: Republicans have frequently hit walls when trying to pass anti-abortion legislation, with lawmakers at odds over exactly how far bans should go.
The reproductive justice organization If/When/How points out these bills are an indication of the different wings and splinter groups in the anti-abortion movement, increasingly evident since the Dobbs decision last year that overturned Roe v Wade.
“What we’re seeing, post-Dobbs, is a splintering in tactics that abortion opponents are using, and emboldening on the part of more hardline” factions within the movement, said Farah Diaz-Tello, senior counsel and legal director at If/When/How.
“That has always been an undercurrent” in the movement, Diaz-Tello added. “As we see other abortion opponents declaring their opposition to criminalization of people who end their pregnancies, this is the opportunity for them to really step up and put those principles into action.”
The bills being introduced in Arkansas, Texas, Kentucky and South Carolina look to establish that life begins at conception. Each of these bills explicitly references homicide charges for abortion. Homicide is punishable by the death penalty in all of those states.
Bills in Oklahoma, South Carolina and Texas also explicitly target medication abortion, which so far has fallen into a legal grey zone in much of the country.
A bill in Alabama has also been announced, although not yet been introduced, by Republican representative Ernest Yarbrough, that would establish fetal personhood from conception and repeal a section of Alabama’s abortion ban that expressly prevents homicide charges for abortion. The state’s current law makes abortion a class A felony, on the same level as homicide, but exempts women seeking abortions from being held criminally or civilly liable.
Laws that establish fetal personhood also bring the risk of opening pregnant people up to battery and assault charges for endangering a fetus. Such charges have already been documented in hundreds of cases, using criminal laws championed in recent decades by the anti-abortion movement that recognize fetuses as potential victims.
“It never starts or stops with abortion,” said Sussman of the far-reaching effects of fetal personhood laws.
“That means that not getting prenatal care, not taking pre-natal vitamins, working a job that is physically demanding – all of those things could impose some risk to the fetus – and that could be a child neglect or child abuse case.”
Such laws have been used to target pregnant people who have taken prescribed medication, taken illegal drugs or drunk alcohol while pregnant, even when there has been no adverse outcome on the fetus.
Some of the bills, such as the one in Arkansas, allow a partner to file an unlawful death lawsuit against a pregnant person who has had an abortion.
“The ways in which pregnant people could become a mere vessel for an entity that has separate and unique rights is becoming closer and closer to reality. And there are ways in which this could be used that we haven’t even contemplated yet,” said Sussman.
