Daniel Grossman is director of Advancing New Standards in Reproductive Health at the University of California at San Francisco. Gail Deady is the ACLU of Virginia’s The Secular Society Women’s Rights Legal Fellow.
A new adaptation of Margaret Atwood’s “The Handmaid’s Tale,” a riveting dystopian story in which politicians have robbed women of their autonomy and women who make their own reproductive decisions are severely punished, debuted Wednesday. This frightening fiction is too close for comfort to our current reality, because women are already being punished for abortion. At least 17 women across the country have been arrested for self-administered abortion.
In Virginia, a woman is facing a felony charge of producing an abortion or miscarriage in the third trimester of her pregnancy. This is another example of overreach and targeting of a pregnant woman. The law she is accused of breaking was intended to protect pregnant women from the actions of others — not to punish them for circumstances that may be beyond their control.
What are the implications, for our health, for civil rights and human rights, and for the status of women in our society, when a woman is arrested because a pregnancy ended?
While little is known about self-administered abortion in the United States, available evidence indicates that it is not common but does happen. A national study of abortion patients found that 1.2 percent reported having ever used misoprostol (a pill used to induce abortion) and 1.4 percent reported using something else to end a pregnancy on their own. A survey of women in Texas ages 18 to 49 found that at least 1.7 percent had attempted to self-induce an abortion at some point in their lifetime.
A woman’s reasons for ending her own pregnancy vary. In a 2014-2015 study by the Texas Policy Evaluation Project, women who had attempted self-administered abortion cited among their main motivations obstacles to accessing abortion in a clinic.
The number of state and federal restrictions on abortion care has grown dramatically in recent years. Since 2010, state lawmakers have passed more than 300 restrictions imposing unnecessary barriers on women’s ability to get safe and affordable abortion care. Ironically, when antiabortion forces pass restrictive laws that limit access, they claim that they never want to punish women, yet there is a deafening silence when women are arrested or thrown in jail.
Financial, logistical and other barriers to abortion disproportionately affect young people, low-income women, women of color, immigrants and those whose insurance does not cover abortion care. While women in the Texas study were diverse in many ways, a common thread was that being poor layered upon one or more additional obstacles left them feeling that they had no other option.
This phenomenon is not limited to marginalized communities, however. We have heard from women of all backgrounds ending their own pregnancies, and we need more research to understand the complete picture.
It is dangerous, however, to create an environment in which women who seek to end their pregnancies are criminalized. No one should be subjected to a bedside police interrogation after a pregnancy ends. It’s cruel and inappropriate, and it will have a detrimental effect on public health.
By threatening women with jail for ending a pregnancy or for seeking medical care after doing so, we may frighten women away from getting important medical care. Whether a woman has lost her pregnancy or ended it on her own, she should never delay medical care because she’s afraid of being arrested at the hospital.
A 2016 report by the ACLU of Virginia shows that prosecutors in Virginia — as in many other states — have unparalleled power to stretch the law to achieve their own ends and to pick and choose who will be prosecuted for breaking laws. We certainly don’t need prosecutors such as those in Virginia arresting women for violating laws that were never intended to be used against women with complications of pregnancy or who’ve ended or lost a pregnancy. These prosecutions create a slippery slope toward increased surveillance of pregnant women and criminalization of birth outcomes, which is bad for public health and deeply concerning from a constitutional standpoint.
At the end of the day, women need access to accurate information and safe options for abortion. They need providers who will care for them, not call the police. Abortion remains legal in this country, and women shouldn’t be shamed, punished or arrested for their decisions about their own pregnancies — or when they have complications of pregnancy that are beyond their control.
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