Donald Trump shocked voters across the political spectrum last year when he unabashedly stated that “there has to be some form of punishment” for people who have abortions. At the time, he was the improbable frontrunner of a narrowing presidential primary field and tried to walk back his controversial statement, only to promise to “ban abortion” while campaigning in the general election several months later. Now, one year into his presidency, the time is ripe to take stock of his campaign promises, including his efforts to overturn Roe v. Wade, the landmark Supreme Court decision that legalized abortion in the United States.
While the president has not had the political stamina (or magical powers) to make good on most of his campaign promises, he has fulfilled his pledge to appoint a Supreme Court justice who is primed to overturn Roe v. Wade. Neil Gorsuch has a record of writing and opining against reproductive rights, including contraceptive coverage in employer-based health insurance, funding for Planned Parenthood, and the constitutional precepts that demand protection of the abortion right. Given the possibility of yet another opening on the Supreme Court during Trump’s presidency, what was once just a fantasy of anti-abortion extremists is now a real threat.
As we consider the potential for a future without Roe v. Wade, we must remember that when politicians make abortion a crime it does not stop people from having abortions. When abortion opponents, candidates and lawmakers speak of abolishing abortion, they are really talking about sending people who have abortions to jail.
Despite trying to walk back his statement supporting punishment for abortion, President Trump’s initial outburst was revealingly consistent with the pattern emerging throughout the country. The harshest prosecution of someone for ending their own pregnancy in U.S. history occurred in Indiana during Vice President Mike Pence’s tenure as governor. At the time of then-candidate Trump’s statement about punishing people for having abortions, a woman named Purvi Patel was serving the third year of a 46-year sentence behind bars for ending a pregnancy at home with pills purchased from an online pharmacy.
Politically motivated prosecutors across the country have experimented with a variety of laws to avenge those who end their own pregnancies, resulting in at least five felony prosecutions. Seven states have laws directly criminalizing self-induced abortion, 11 states have fetal harm laws intended to protect pregnant people but which instead are twisted to punish them, and 15 states have criminal abortion laws that have been and could be misapplied to people who end their own pregnancies. Prosecutors may also tap as many as 40 different types of laws when they can find no other statutory authorization to punish someone. This tenacious tactic has resulted in criminal investigations in 19 states and at least 18 arrests of people allegedly involved with abortion outside a clinical setting.
Despite the legal ambiguity, data from around the world demonstrate that ending one’s own pregnancy can be a safe and private experience. Lamentably, the threat of arrest can add a traumatizing overtone, particularly for those who live under heightened government surveillance or fear arrest because of identities they hold. This fear is justifiable given that someone searching on the internet for information about proper dosage and typical side effects of abortion with pills might instead find news stories about Purvi Patel, Jennie Linn McCormack, Kenlissia Jones and others arrested and imprisoned for allegedly ending their own pregnancies.
Even now, prosecutors in Virginia are trying to find new uses for old laws criminalizing abortion, applying them to women in ways that were never intended by the legislature. A woman’s freedom hangs in the balance, and the court has yet to check this overreach. These punitive policies are out of step with public opinion, as are efforts to end legal abortion. The criminalization of people who end their own pregnancies fits into a larger landscape of overcriminalization in general, and over-policing of communities of color specifically. Criminalization of abortion is just one of many means of criminalizing black and brown bodies, including immigration crackdowns, the “war on drugs” and civil child welfare penalties.
While the president is working to erode Roe v. Wade’s protections, it’s critical that the rest of us work toward full decriminalization of abortion, so nobody needs to fear investigation or arrest for ending a pregnancy, fulfilling Roe v. Wade’s promise once and for all.