The nation’s largest and oldest organization for legal professionals is taking a stand against the criminalization of pregnancy-related circumstances, including self-managed abortion. Advocates say this is a significant step in the effort to decriminalize the reproductive lives of low-income people of color.
The American Bar Association (ABA) has adopted a resolution opposing the criminal prosecution of any person for having an abortion, suffering a miscarriage, stillbirth, or other pregnancy outcome. The 142-year-old organization is also urging federal, state, local, Tribal, and territorial governments to repeal and oppose statutes that criminalize people for termination of pregnancies, and is requesting that existing laws not be used to prosecute any person for having an abortion or other pregnancy outcome.
Physicians for Reproductive Health CEO Dr. Jamila Perritt, who is also an OB-GYN and abortion provider, applauded the ABA’s resolution. No one should be criminalized for accessing health care, she said.
“We know that when health care like abortion is criminalized, Black and brown women, trans folks, and nonbinary people are more likely to face punishment and criminalization,” Perritt said. “This is dangerous and does not keep communities safe.”
People have the constitutional right to abortion everywhere in the United States, but self-managed abortion exists in a legal gray area. Five states—Arizona, Oklahoma, South Carolina, Delaware, and Nevada—have specific laws that criminalize self-managed abortion, but states that do not have these laws misuse other criminal laws to target people for self-managed abortion and other pregnancy outcomes. As of 2020, 38 states have feticide laws that equate pregnancy termination with murder. Most of these laws explicitly exclude pregnant women from criminal penalties, but as Ms. Magazine reported, “extreme, politically-motivated prosecutors are stretching the law” in order to punish people who end their own pregnancies. These prosecutors use a combination of feticide laws and those related to child neglect, practicing medicine on oneself, or possession of a dangerous substance.
Executive Director of Reproaction Erin Matson said that people have been prosecuted and convicted for safe and normal events like self-managing an abortion with pills or experiencing a stillbirth at home, and this is happening in states of all political persuasions.
“There is no appropriate role for the criminal punishment system in reproductive health care,” Matson said. “The American Bar Association’s resolution against criminalization of pregnancy outcomes—abortion, miscarriage, birthing complications, or whatever a person may experience—is a significant statement with real power to improve people’s lives.”
The Food and Drug Administration has an approved two-drug protocol for medication abortions, a combination of misoprostol and mifepristone typically prescribed by a doctor during the first 10 weeks of pregnancy. However, the World Health Organization says misoprostol alone can be used to safely induce abortion. Those who self-manage usually do so at home using misoprostol, a safe drug that is 85% effective in terminating a pregnancy. The medication is among a group of self-induction practices that can encompass medication, herbs, or manual aspiration, though some methods are safer and more effective than others. The abortion rights organization Reproaction has a complete breakdown of self-managed abortion with pills within the first 12 weeks of pregnancy. The risk of criminalization, prosecution, and imprisonment for self-managed abortion is especially high for low-income women of color who obtain the medication online.
Executive director of the abortion storytelling group We Testify, Renee Bracey Sherman, said several storytellers in her organization have experienced criminalization while making pregnancy-related decisions. Using laws against people for what happens to their bodies is “horrific,” Bracey Sherman said.
“We know that criminalization—a legacy of slavery, white supremacy, and anti-Blackness impacts us hardest, particularly as the majority of people who have abortions are people of color,” Bracy Sherman said. “We truly hope to see that more lawyers, prosecutors, and other legal advocates heed the resolution of the ABA and stop prosecuting people who self-manage their abortions. It’s a bullshit racist and xenophobic system, plain and simple.”
Melissa Torres-Montoya and Sara Ainsworth, the two attorneys who successfully advocated for the ABA resolution, are from the legal advocacy organization If/When/How that fights for reproductive justice. Torres-Montoya said that the resolution was important to pursue because there is a preponderance of evidence showing that states take an overzealous approach to criminalizing people for their reproductive decision making. More than 24 people since 2000 have been criminalized for self-managed abortion, Torres-Montoya said. Between 1973 and 2005, more than 400 people were criminalized for miscarriage, stillbirth, and other pregnancy outcomes.
Ainsworth explained that getting a resolution adopted in the ABA is a lengthy operation similar to a legislative process. It took two years, and this is only the third abortion-related resolution in the ABA’s history since its founding in 1878.
“When people in the [ABA] understood how this related to overcriminalization, racism in the criminal justice system, and the targeting of low income people, it fit really well with what they are doing policy-wise,” Ainsworth said. “It was heartening to see a profession, one that is often rightfully pegged as being a little soulless and out of touch with real people’s lives, actually respond to the injustice and the racism and the classism and gender bias that we see in prosecutions [for pregnancy outcomes].”
Ainsworth said the impact of the resolution won’t be felt immediately, but it allows for stronger arguments and advocacy to repeal harmful laws. If/When/How uses a “repeal, reform and reinforce” model focused on repealing laws that criminalize, reforming laws that have been misused to criminalize and reinforcing the constitutional rights of people to make their own decisions about their reproductive lives. Because of the resolution, the ABA can now take the powerful step of filing amicus briefs in cases.
“[The resolution] does not change the law; it does not bind a prosecutor in a state; it does not bind a judge, but we have seen time and time again in the ABA’s history that it’s a very influential body in the legal system,” Ainsworth said. “This resolution can carry a lot of weight, and we can rely on it to fight for someone’s reproductive life.”
The ABA’s adoption of the resolution is timely. State lawmakers have spent the first months of 2021 introducing anti-abortion legislation in record numbers, including eight abortion restrictions and bans. There is evidence to suggest that when abortion restrictions are on the rise, pregnant people turn to self-managed abortion as an option.
Elephant Circle and the Birth Rights Bar Association co-founder Indra Lusero said they were heartened to see the ABA take a stand on such an important issue. Elephant Circle and the Birth Rights Bar Association are organizations that focus on legal advocacy around birth and reproductive justice. Next, Lusero said they would like to see the organization tackle instances in which coercion and force are used during childbirth. Lusero cited the case of Rinat Dray, a woman who was forced to undergo a caesarean section against her will at a New York hospital. The Guardian found that the hospital had an internal policy permitting doctors to overrule a pregnant person’s medical decisions.
“Anti-abortion policy harms all pregnant people in multiple ways,” Lusero said. “This includes those who carry their pregnancy to term.”