The U.S. Supreme Court will soon consider the case of June Medical Services, LLC v. Gee, and whether Louisiana’s 2014 admitting privileges law (Act 620) unduly burdens abortion rights. Louisiana’s suit, which the court will consider during oral arguments on March 4, challenges both a Louisiana admitting privileges requirement and the ability of providers to challenge certain types of abortion restrictions on behalf of their patients. If allowed to stand, the bill will have a twofold impact: the closure of abortion clinics in the state, and the further stigmatization of abortion as unsafe and in need of close medical supervision.
Both effects have significant implications for people who want to end pregnancies, especially those who self-manage their abortions. According to the abortion rights organization Reproaction, self-managed abortion is when a person chooses to perform their own abortion outside a medical setting because abortion care at a clinic is unavailable, inaccessible, or not desired. After a years-long legal battle, Act 620 was temporarily blocked in February 2019. If the law is allowed to go into effect, the district court found that only one clinic would remain open and only one physician would continue to provide abortions in Louisiana, a state where approximately 10,000 people access abortion care each year. Fewer clinics means less access to medical care and increased stigmatization of abortion.
The legal advocacy organization If/When/How: Lawyering for Reproductive Justice filed an amicus brief about self-managed abortion as part of June Medical Services, writing that Act 620 creates “stigma and a false aura of illegality around abortion,” which “increases the likelihood that people will be criminally investigated and possibly charged if someone suspects that they have had an abortion.”
It’s difficult to draw a clear line between access to clinic-based abortion and increased rates of self-managed abortion because the data on care outside the formal medical system is limited. But If/When/How senior counsel Farah Diaz-Tello said that recent data looking at why people in the U.S. sought abortion pills from outside the country via the internet revealed that nearly three-quarters of those people were doing so from states that heavily restrict clinic abortion.
She added that when clinics close, people will inevitably find ways to end pregnancies on their own. Advances in reproductive health technologies mean that the medical risks have decreased dramatically since the days before Roe v. Wade, but the risk of criminal prosecution has increased. The “aura of illegality” around abortion created by laws like Act 620 often turns into the criminalization of people who end their own pregnancies.
What is self-managed abortion?
Self-managed abortion encompasses all methods a person may use to end their own pregnancy, including medication, herbs, and manual aspiration, though some methods may be safer and more effective than others.
Dr. Johana Oviedo, an obstetrician/gynecologist and a fellow with Physicians for Reproductive Health, said that cases like the one emerging in Louisiana creating a “chilling effect” and hurt those who already face the most barriers to health care: people of color, people with low incomes, trans and queer folks, and people living in rural areas.
“Those barriers may lead people to self-manage their abortions because they really do not see another way,” Oviedo said, noting that others choose to self-manage because they don’t want to involve a doctor, or they are worried about their immigration status. While a large majority of Oviedo’s patients migrated from countries where abortion is illegal and are shocked that she can provide them with abortion care, there are others in immigrant communities who are familiar with using herbal medications from friends or family members to end a pregnancy.
“We meet them where they are, medically, to assess if more treatment is needed when we see them and we do not criminalize women in those circumstances,” the doctor said.
Advocates increasingly discuss the use of abortion pills outside of a clinical setting as a “work-around to restrictive policies and gaps in access,” according to Guttmacher Institute, a research and policy organization committed to advancing sexual and reproductive health and rights. Reproaction provides information on self-managed abortion with pills within the first 12 weeks of pregnancy, focusing on the use of misoprostol, a safe drug that is 85%effective in terminating a pregnancy. There is also an FDA-approved two-drug protocol, involving both misoprostol and mifepristone. Guttmacher reports that despite an extensive safety record, mifepristone is heavily restricted in the U.S., making misoprostol on its own the more readily available option.
There is “legal complexity” around people obtaining abortion pills to end a pregnancy, Diaz-Tello explained.
“There are a slew of unnecessary, politically-motivated restrictions on how abortion pills are dispensed, but they don’t authorize criminal prosecution of people who order the pills,” If/When/How’s senior counsel said.
Thousands of Americans are ordering medications like insulin and blood pressure medicine from online pharmacies or obtaining them from other countries due to the high cost of pharmaceuticals in the U.S. They usually face no legal consequences for doing so. Lawmakers are trying to make it easier for people to access medication this way. Accessing abortion pills shouldn’t be any different, Diaz-Tello said, but abortion opponents have asked the FDA to crack down on the importation of safe and effective pills. The federal government is now also targeting those within the U.S. who sell abortion pills online.
Criminalizing pregnant people
Abortion stigma increases when it comes to self-managed abortion, and so does criminalization—especially for people of color and immigrants. People have been prosecuted for self-managing abortion under a variety of state statutes, ranging from laws against fetal homicide to those that criminalize failure to report an abortion to the coroner, according to Guttmacher. The issue has gained more attention in recent years because of the well-publicized cases of Chinese immigrant Bei Bei Shuai and Purvi Patel, an Indian American woman who performed a self-managed abortion and was initially sentenced to 20 years in prison after a jury found her guilty of the contradictory charges of feticide and felony neglect of a dependent.
Louisiana’s admitting privileges requirement is just one of 89 abortion restrictions the state has enacted since 1973, the most of any state, according to a new report by Guttmacher. Louisiana has become an abortion battleground and with that comes an increased risk of criminalization for people who are already heavily policed and surveilled. This fear of criminal punishment will actually dissuade people self-managing abortions from seeking medical attention if they need it, putting their safety at risk. In part, this is why more than 1,700 health care professionals have signed an open letter to the medical community community calling for an end to de facto criminalization of self-managed abortion.
“If someone needs medical attention because of a complication of a self-managed abortion, miscarriage, or stillbirth, they should be able to seek that care without fear that they will be arrested or deported,” Diaz-Tello said. “Immigrants and people of color are already criminalized in our country. [What is happening in Louisiana] creates yet another way that members of these communities will be under the microscope if they come in having ended a pregnancy or experienced a miscarriage or stillbirth.”
There are many reasons for immigrants and people of color to fear criminalization for self-managing, but this is especially true in Louisiana. For decades, Louisiana has held the designation of having the highest incarceration rate in the nation and under President Trump, Louisiana has become “the epicenter” for immigrant detention. Prosecutors in the state also have a history of criminally charging people based on pregnancy outcomes even though the law prohibits it, as evidenced by a Louisiana woman charged with murder of a fetus when she miscarried as a result of medication given to her by a health care provider. When these forces combine, Louisiana laws—real or imagined—become a web designed to ensnare the most vulnerable.
Attorney Mandisa Moore-O’Neal was born and raised in New Orleans. She is co-chair of the New Orleans chapter of the Black Youth Project 100 (Byp100) and the founder of the Moore-O’Neal Law Group, a Black feminist law and policy practice. Moore-O’Neal said there needs to be “a reckoning” with how intertwined reproduction has become with the carceral state, especially when considering how Black motherhood in particular, and “brown, poor, immigrant parenthood” are criminalized.
“If we can’t understand that, how will we ever understand the magnitude of the criminalization that will come for these same groups of people if they self-manage?” Moore-O’Neal said. “Black women in the South have had these fears for a long time and they have really led national dialogues about the carceral state and its impact in our communities. So, I use ‘reckoning’ intentionally. There is deep work that needs to be done outside of our communities to fully acknowledge and understand who will be the target of attacks.”
Work that Black and Indigenous people ‘have been doing for centuries’
After a resurgence of visibility for midwives and doulas—who usher people through abortion, birth, deaths, and other life transitions—the attorney and Byp100 co-chair said that an unintended consequence of the anti-abortion atmosphere in Louisiana may be forcing these workers underground.
“I’ve been thinking about the work that Black and Indigenous midwives and doulas have been doing for centuries. They have a knowledge of the body that includes supporting people through birth and supporting them through terminating a pregnancy. This has always been risky work, but in our state we know the threat of criminalization is real. I definitely anticipate that the state will not only criminalize pregnant people who choose to self-manage, but also the people who help them navigate that,” Moore-O’Neal said.
It’s important to note that even if Act 620 is upheld and goes into effect, abortion will still be legal in Louisiana and there will still be no legal authority to investigate or charge people for self-managing their abortions. If a person is contacted by law enforcement or is concerned they will be arrested, they should contact a lawyer, Diaz-Tello said. If/When/How has a legal helpline, where people can get information about their rights and get connected to an attorney who specializes in these issues to help them prepare for an investigation or fight charges.
“There are people in our communities who have guided us through the termination of a pregnancy for centuries when there were no hospitals and more recently as the state makes accessing care impossible, and these people will continue to do that for us,” Moore-O’Neal said. “The state can choose not to include abortion as part of its function, but it’s never stopped us before. In these dark times, I hope people find hope in that.”