Since abortion rights were overturned in June by the Supreme Court, a spotlight has been placed on self-managed abortion as an alternative for patients in states where clinician access may be all but impossible. But in a new report by If/When/How, the reproductive justice policy organization found that while only seven states have explicitly criminalized self-managed abortion, people are still being charged for it in states across the country. As the reproductive landscape continues to shift in post-Roe America, If/When/How’s report points to what that future of criminalization may look like–reinforcing that those who are already vulnerable to racist and unjust systems will be most impacted.
“At this moment, we’re in a scary time,” said Laura Huss, the senior researcher for If/When/How. “Things are shifting every day. The future of abortion criminalization will look like in this country is racist, unjust, and dehumanizing people at every turn.”
As states continue to ban abortions and some people face criminal charges for private social media messages discussing terminating pregnancies, legislators and prosecutors have already turned their sights on medication abortion as another target for bans and criminalization.
Self-managed abortions are abortions managed outside of the medical system, typically using medication accessible by mail and authorized by the FDA. But, according to Huss’s research in the If/When/How’s report, from 2000 to 2020, 61 cases were documented in which people were criminally investigated or arrested for self-managing their abortion or helping someone else access theirs.
If/When/How’s reporting first began in 2017 when they documented the phenomenon of the criminalization of self-managed abortion in its report, “Roe’s Unfinished Promise” in which they analyzed a series of laws that criminalize people for self-managing abortions. By doing a deep analysis into each case, Huss thought to illuminate who is being targeted for criminalization, and how these cases make their way into and through the criminal process.
According to Huss, overzealous prosecutors and police misapplied criminal laws to arrest people under statutes not meant to apply to allegations of self-managed abortions. They circumvented the law’s parameters to charge people with crimes regardless of what their state law authorizes. This included laws meant to address the handling of human remains, concealment of a birth to practicing medicine without a license, child abuse, assault, murder, and homicide all being misapplied to allegations of self-managed abortion.
“Even before Roe was overturned, people who self-managed abortions faced legal risks under some state statutes,” Huss said. “Criminalization happens in spite of the law driven by stigma.”
While there has been a lot of focus on period tracker apps as a form of data surveillance used to criminalize pregnant people, If/When/How did not find a single instance of a period tracker app being used for this purpose. Their research, however, showed that even less sophisticated forms of data technology like text messages and search histories on someone’s device were used as evidence after someone was criminalized, and their device was seized.
“What our research though does confirm is that the biggest threat to privacy of abortion seekers is other people,” Huss said.
Forty-five percent of people in their research were reported to police by care professionals, either health care providers or social workers, that people initially reached out to when they were in need of care during or after their abortions.
“This breakdown of trust and ethics in the patient-doctor relationship is really alarming,” Huss said. “We want health care providers to know that they can help stop criminalization before it happens, either by educating themselves and their peers to understand that self-managed abortion is not a mandatory reporting requirements.”
Twenty-six percent of cases are reported to law enforcement by acquaintances trusted with information such as friends, parents, or intimate partners. According to Huss, health care providers are not required to report self-managed abortions to law enforcement and it is a HIPAA violation absent a specific requirement in law.
“When healthcare providers police their patients, it can also instill fear and push people away from seeking care, which is another big concern,” Huss said.
While most cases ended in a guilty plea, almost a quarter of the cases were dropped or dismissed by either the prosecutor and the court after the charges were reviewed. According to Huss, this provides a way forward for advocates and perhaps even a bit of hope. Even though prosecutors frequently bend the law to their purposes, forcing a review of the legality of the charges, either pre-trial or appeal, can bring a case to a favorable outcome. Huss hopes criminal defenders and advocates can be adequately trained on the issues to help fight the charges.
“The law still matters,” Huss said. “It’s important for us to see points of disruption that we can enter into now with this information.”
Huss suggests people reach out to and support their local abortion support networks such as abortion funds and local advocates for more information and to help people avoid and navigate potentially hazardous interactions with law enforcement.
“In this moment, when the state itself seems to be the primary danger for people seeking abortions, those abortion support networks remain very important,” Huss said. “Criminalization does not belong in health care.”