Between 2000 and 2020, 61 people, including seven minors, were criminally investigated or arrested for allegedly ending their own pregnancies or helping someone else do so, according to a Monday report from If/When/How, a reproductive justice group that helps people deal with legal cases related to pregnancy.
Only 14 of those cases arose in the seven states that had bans on “self-managed abortion” on the books between 2000 and 2020. The report found that the vast majority of those cases were charged under other kinds of laws – ones that prosecutors had made elastic enough to fit the supposed crime.
“This criminalization is happening in spite of the law, not because of it,” said Laura Huss, a senior researcher at If/When/How. “It’s really important also to acknowledge, to name and to recognize that the wrongful charges that we’ve seen are illegitimate uses of state power and must be challenged.”
In late 2022, just months after the overturning of Roe v Wade, If/When/How released a report revealing how at least 61 people had faced criminal consequences linked to self-managed abortions. But the Monday report offers a deeper dive into those cases.
Out of 54 cases that involved adults, 42 proceeded through the criminal court process and more than 40% of the cases involved people of color. In 45% of cases, it was healthcare providers or social workers who tipped off police to the suspected self-managed abortion – even though, according to If/When/How, there is no state or federal law that requires these providers to report self-managed abortions to law enforcement. In fact, by doing so, providers might be violating their patients’ privacy rights.
Most of the cases found by If/When/How allegedly involved people inducing an abortion using pills, a method that medical experts can agree is safe if used early on in pregnancy. In 9% of cases, people allegedly used some kind of herb or “botanic medicinals”, while people allegedly used physical force in 7% of cases. People also allegedly used household or toxic poison in 4% of cases.
Thirty cases involved people facing criminal consequences for their own suspected self-managed abortions, rather than helping someone else, the report found. Seven were charged under self-managed abortion bans, eight under abortion bans, four under “fetal harm” laws, and another 12 were charged using a variety of crimes, including child abuse, felony assault or assault of an unborn child, practicing medicine without a license, or even homicide and murder.
In 2002, an Ohio woman hurt herself in an attempt to end her pregnancy, the report found. Even though the pregnancy wasn’t terminated, law enforcement charged her with felony assault. That charge was then dismissed, because the charge was meant to be used against people who hurt others, not themselves. Instead, prosecutors charged the woman with practicing medicine and surgery without a certification.
Eventually, the charges were dropped – but only after the woman had been jailed while pregnant, according to the report.
Just one state, Nevada, still maintains a ban on self-managed abortion. But the cases uncovered by If/When/How occurred across 26 states, including states from across the political spectrum, like California, Texas, Florida and New York – all of which did not have a self-managed abortion ban during the two-decade span of the report.
“When someone is seeking care after self-managing, or ends up being criminalized while they’re still pregnant, that means that they are then being interrogated by police at their bedside and hospitals,” Huss said. “That means that someone is being held in jail for the remainder of their pregnancy.”
In some cases, people were stranded in jail for longer than their ultimate sentences, the report found. In one case, a woman, unable to pay for $200,000 bail, was left behind bars for more than a year. By the time she was convicted, she was immediately released because she had in effect already served her sentence.
Another woman was sentenced to four months in jail – after she had already spent four months there, unable to pay the $25,000 bail or to live with her children. One woman ended up going to labor in jail; she was transported to the hospital in shackles and then was only able to breastfeed her newborn daughter while locked to the bed, according to the report.
At least three women lost their jobs because of an alleged self-managed abortion, the report found. Just one of those three was convicted. A fourth woman pleaded guilty to a more severe crime in order to avoid losing her job.
“Whether folks were convicted or not, several people did lose custody of their children temporarily or permanently,” Huss said. “Thirty per cent of the known parents temporarily or permanently lost custody of their children in conjunction with a criminal intervention relating to allegations of self-managed abortion. And this is especially concerning as over half of people who seek abortions are parents.”
If/When/How, which also runs a hotline for people with legal questions as well as a legal defense fund, has discovered at least 11 more cases of people being criminalized for suspected self-managed abortions since 2020. Researchers said they were not yet sure whether more people are being investigated or arrested over self-managed abortions post-Roe.
“I think the wrong question to ask is about how we’re seeing increases or if that’ll happen,” Huss said. “Any particular case that happens is a case to worry about.”
