Being prosecuted

Women are already being prosecuted for having abortions

By Irin Carmon

Minutes after Republican presidential front-runner Donald Trump told MSNBC’s Chris Matthews that “there has to be some form of punishment” for women seeking abortions, many anti-abortion rights advocates immediately distanced themselves.

A Cruz campaign staffer tweeted, “Trump doesn’t understand the pro-life position because he’s not pro-life.” In swiftly-issued statement, Jeanne Mancini, president of the March for Life Education and Defense Fund, said: “No pro-lifer would ever want to punish a woman who has chosen abortion. This is against the very nature of what we are about. We invite a woman who has gone down this route to consider paths to healing, not punishment.”

The anti-abortion movement has spent decades working to counter the accusation that it is anti-woman. Witness anti-abortion laws, like the one currently being considered by the Supreme Court, that put new restrictions on abortion providers in the name of protecting women’s health, as opposed to protecting fetal life. Advocates for banning abortion entirely have argued, extensively, that in the world they hope for, only abortion providers will be subject to criminal penalties.

But even under the status quo, where Roe v. Wade technically hasn’t been overturned, women are already being prosecuted and even convicted on suspicion of having abortions. Just ask Purvi Patel, who is appealing a 30-year prison sentence for her conviction for feticide in Indiana. Prosecutors said she had ordered abortion pills online and charged her with feticide, which had been initially touted as a way to prosecute people who attack pregnant women. The prosecutor in South Bend, Indiana who brought the case told MSNBC of prosecuting Patel under the feticide charge, “A more accurate title would be ‘unlawful termination of pregnancy.’”

Or ask Tennessee’s Anna Yocca, who at 24 weeks pregnant used a coat hanger to try to induce an abortion and later gave birth to a living child. Earlier this month, she pled not guilty to aggravated assault after having been initially charged with attempted murder. Or Rennie Gibbs, a Mississippi teenager who after a stillbirth was indicted for “depraved heart” murder for allegedly smoking crack during her pregnancy. Or Jennie Lynn McCormack, the Idaho woman who was initially prosecuted for violating the state’s 20 week abortion ban, until a federal court said it was unconstitutional.

Jennifer Whalen of Pennsylvania wasn’t jailed for having an abortion herself. In 2014, she began serving a 9-18 month sentence for ordering pills online so her sixteen year old daughter could end her pregnancy. The New York Times reported that the closest clinic to the Whalen family was about 75 miles away, and that she and her daughter worried about the travel and affording an abortion. The hospital where they went after Whalen’s daughter took the pills reported her to child protective authorities, and she was charged with a felony and three misdemeanors for violating the state’s abortion and medical regulations. In theory, the regulations that require that abortion be performed only by licensed medical personnel are put in place to protect women. In practice, women get prosecuted under them.

Under current abortion law, women cannot be prosecuted for going to a legal abortion provider and ending their pregnancies lawfully, which depending on the state can involve multiple visits to a clinic, a required ultrasound, a ban on using insurance coverage, and state-mandated information that many doctors consider medically inaccurate.

But as the cases of these women across the country show, women have been prosecuted under current restrictions on abortion, at times with major felonies. The underlying logic of the laws is that the embryo or fetus is worthy of legal protection to the point of prosecuting the pregnant woman.

A few hours after the town hall, Trump abruptly backed away from his own comments, saying that in the world anti-abortion advocates would prefer, in which abortion is illegal, the doctor who would perform an illegal abortion would be prosecuted, not the woman. “The woman is a victim in this case as is the life in her womb,” the Trump campaign said in a statement.

But a world in which abortion is banned entirely and women are themselves prosecuted for breaking that law is not so hard to imagine, after all.