Now that the US Supreme Court has overturned Roe v Wade, the landmark 1973 decision that protected the constitutional right to an abortion, it won’t just be harder for American women to get the procedure — states have also been lying in wait with tough penalties for anyone that will provide the care. Some experts warn that those seeking abortions could also become vulnerable to harsh consequences.
In Louisiana, doctors providing abortions face up to 15 years in prison under a trigger law designed explicitly to take effect after the fall of Roe. And in Texas and Oklahoma, those who help someone receive an abortion are vulnerable to lawsuits from “vigilante” citizens who have been deputised by so-called bounty laws.
While most states with restrictive abortion laws have so far abstained from criminalising people seeking abortions, that often doesn’t stop prosecutors from targeting them. Charges can range from child endangerment to practising medicine without a licence. Meanwhile, some healthcare providers are also tasked to report behaviour that is considered as endangering a pregnancy to law enforcement, the abortion-rights group National Advocates for Pregnant Women notes, a practice that disproportionately impacts black women and other pregnant people of colour. And all of that could ramp up now that Roe is no longer the law of the land.
Experts and healthcare providers worry that the current environment will scare people out of seeking reproductive care overall, as well as create distrust between patients and the institutions and groups that want to help them.
“Any time somebody tries to criminalise anybody for accessing care that they need — or for folks either providing information or actually providing that care — it is a very scary scenario to be in,” said Bhavik Kumar, a doctor and a board member for the abortion-rights advocacy group Physicians for Reproductive Health. “Whether it’s the intent or not, when politicians are legislating medicine in this way, by criminalising it, it does have a chilling effect.”
Any time somebody tries to criminalise anybody for accessing care that they need — or for folks either providing information or actually providing that care — it is a very scary scenario to be in.
— Dr Bhavik Kumar of Physicians for Reproductive Health
Louisiana governor John Bel Edwards on Tuesday signed a law that criminalises the act of providing an abortion in every case, with no exceptions for rape or incest. Under the law, known as Senate Bill 342, doctors who provide any sort of abortion care would be subject to up to 15 years in prison, depending on how far along a patient’s pregnancy has progressed. It was signed as a trigger law, and stipulated that the new restrictions would go into effect immediately if and when Roe fell.
The Louisiana law is among the most extreme examples of what pro-abortion advocates call TRAP laws, or targeted regulations of abortion providers. Such laws range from placing onerous and extraordinary regulations on abortion providers that have little to do with the scope of the care they provide, to requiring that doctors maintain admitting privileges at nearby hospitals.
Such laws are “a legitimate concern for providers”, said Alina Salganicoff, director for women’s health policy at the Kaiser Family Foundation. “They could potentially be prosecuted.”
“We are in a grey zone,” she said.
Massachusetts governor Charlie Baker, a Republican, on Friday signed an executive order offering protections to state-licensed healthcare workers who provide services to out-of-state residents seeking abortion care. The order also bars agencies and employees from providing information to other states who might investigate instances of care received in Massachusetts.
Meanwhile, states like Connecticut and New York have already passed legislation protecting physicians who provide abortions to out-of-staters.
That could tee up a spat between states. Aggressive prosecutors may end up requesting that pro-choice states extradite physicians who perform abortions on women from places with bans.
“The states are going to battle it out in court,” said Greer Donley, an assistant law professor at the University of Pittsburgh’s school of law. Donley said that there’s little applicable precedent regarding extradition rules between states.
Attempts at criminalising the actions of people seeking abortion care have been happening for years. The National Advocates for Pregnant Women said it has compiled at least 1,700 cases targeting pregnant people between 1973 and 2020.
Earlier this year, murder charges were brought against a Texas woman on the grounds that she self-induced an abortion. Starr County district attorney Gocha Ramirez later moved to have the charges dropped, but said that the sheriff’s department “did their duty in investigating the incident brought to their attention by the reporting hospital”.
Elizabeth Nash, a state policy analyst with the Guttmacher Institute, said that prosecutors have used claims such as child endangerment, as well as practising medicine without a licence, as grounds to press charges against people who received abortion care. Experts caution that people seeking treatment from states where abortion has been made illegal should take certain precautions regarding their internet search history, as well as with whom they tell that they are receiving care.
A bill introduced in Louisiana’s house of representatives in May attempted to classify abortion as homicide and set the stage so that pregnant people could also be criminalised for obtaining an abortion. The bill was amended to more closely resemble SB342 after outcry from pro- and anti-abortion groups and lawmakers.
The American College of Obstetricians and Gynaecologists has condemned attempts to criminalise the actions of people seeking to terminate their own pregnancy.
South Carolina, Nevada, Kentucky and Oklahoma all have laws outlawing self-managed abortions, administered through medications. Abortion pills are an effective way to terminate a pregnancy in the first 10 weeks. The Guttmacher Institute found more than 54% of abortions were conducted by taking these pills in 2020.
Still, charging a pregnant person who attains an abortion in a different state could be politically unpopular, even in conservative strongholds.
“Historically, there’s been an aversion to going after and prosecuting a pregnant person,” said Donley.
Abortion funds are some of the most vulnerable targets for state governments in a post-Roe world, Donley said. These groups provide resources like travel money to people who cross state lines for care.
Other efforts to target those who help people receive an abortion — whether knowingly or not — are spreading. Included in the six-week ban that went into effect in Texas last September was a stipulation that anyone who assisted a person to obtain an abortion could be held liable in a bounty clause. The ride-hailing companies Uber and Lyft denounced the provision, and said they would cover the legal fees of any driver who might face charges.
A bounty clause in Oklahoma’s six-week ban, signed in May by governor Kevin Stitt, was wide-reaching in scale. Susan Braselton, a board member of the Roe Fund, an abortion fund focused on helping people receive care in Oklahoma, previously said she was worried that the law never clarified its scope as to what constitutes aiding and abetting.
“We’re all scrambling, trying to figure out,” Braselton said.
More stories like this are available on bloomberg.com
— Bloomberg
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