But the draconian nature of the Georgia and Alabama abortion bans, as well as proposed legislation in states such as Texas and Missouri, would not simply return us to pre-Roe abortion law if permitted by the courts. Instead, they represent a dramatic and unprecedented escalation of antiabortion law in the United States. It is far, far worse than a simple Roe reversal.
The mechanism by which the Georgia law bans abortions is the key: HB 481 defines fetuses as legal persons, subject to criminal legal protections. Although the new law does not expressly prescribe criminal penalties for abortion in its text, legal commentators have pointed out that under existing criminal statues, women who either terminate their own pregnancies after six weeks or seek an abortion from a health-care provider could be subject to criminal charges, including — since the law defines a fetus as a legal person — homicide charges. Potential penalties range from lengthy prison sentences to capital punishment.
This is not an idle threat. A state prosecutor charged a woman in 2015 with murder for inducing an abortion while in the second trimester of her pregnancy. Although the charge was quickly dropped, HB 481 provides a legal basis for similar cases to be filed in the future.
The Alabama law differs from the Georgia ban in that it specifically excludes women who seek abortions from legal punishment while codifying extensive punitive consequences for abortion providers. Under the new Alabama law, abortion providers could face up to 99 years in prison for performing any abortion in the state, with the exception for “serious health risk[s]” for the mother. The law pointedly does not include exemptions for rape and incest.
The potential criminal penalties in Georgia’s new abortion law, and the lengthy prison sentences that abortion providers face in Alabama, are new innovations, not a return to pre-Roe status. The first modern antiabortion laws were passed in the United States in the 19th century at the state level. The vast majority of these state statutes treated abortion as a separate offense from homicide. Even states that did legally classify abortion as a felony offense, as New York did in its 1830 abortion law, generally defined abortion as manslaughter rather than murder, and specified that manslaughter charges were applicable only after the “quickening.” (The “quickening” refers to the moment at which a pregnant woman can feel the fetus moving, generally around the 16th week of pregnancy.)
Even states with theoretically strict laws against abortion almost never prosecuted women who sought abortions, although as historian Gillian Frank points out, women who were known to have had abortions were publicly stigmatized in a variety of ways. The general state practice was to prosecute abortion providers — some of whom were male doctors, but the majority of whom were working-class midwives — and, at least before the 1930s, generally only in the event of a woman dying as a result of the operation.
This was not beneficence on the part of the state; in Illinois, most prosecutions of abortion providers hinged on dying declarations in response to questions from police by hospitalized women in their final moments of life. The majority of women who were subject to such interrogations were working-class immigrant women, who were already subject to extensive state scrutiny in the name of public health. In many states, an unofficial system was set up where doctors would refuse to perform abortions unless women signed statements effectively absolving the attending physician from any responsibility in the event of the woman’s death.
The pre-Roe legal regime governing abortion was brutal and punitive. Indeed, between the 1940s and 1970s, criminal prosecutions of abortion providers actually increased. The reasons behind this prosecutorial uptick would be familiar today: a response to fears over women’s autonomy in the new Cold War world.
In practice, this meant many women were forced to testify against abortion providers by overzealous prosecutors. The practice was even dramatized for television: A 1962 episode of the CBS courtroom drama “The Defenders” centered on a woman who was forced to testify against her abortion provider. But even in these cases, as humiliating and stigmatizing as public testimony was, women were rarely subject to prosecution themselves. Doctors faced disbarment and potential prison time for performing abortions, but the penalties were far less harsh than in Alabama’s new law. In the state of New York in the 1950s, a doctor convicted of providing an illegal abortion faced up to four years in prison, not up to 99.
Georgia HB 481, on the other hand, would introduce criminal penalties for women who seek abortions. This has been a goal of the antiabortion movement for at least the past decade. Donald Trump said on the campaign trail in 2016 that there “has to be some form of punishment” for women who have abortions; conservative columnist Kevin D. Williamson was cashiered from The Atlantic after tweets surfaced in which he suggested that women who have abortions ought to face the death penalty. This is a dramatic escalation of the pre-Roe legal regime.
The women who will face the brunt of these laws will undoubtedly be poorer women of color. Under the new Georgia law, any woman in the state, including upper- and middle-class white women, can theoretically be charged with murder if they have an abortion performed after six weeks. But realistically, prosecutors have immense discretion on which cases to pursue.
Prosecutorial discretion, along with judges’ discretion on sentencing guidelines, almost always benefits wealthier white people and punishes poorer people of color. This is not a new insight — there is overwhelming evidence of systemic racism in the American criminal justice system. Given those disparities, and given that the pre-Roe legal regime disproportionately targeted poorer immigrant women as well, it means that minority, particularly black, women are most at risk from abortion criminalization laws.
There is a particularly bleak irony to this in Georgia: The antiabortion law that will hurt black women the most was signed by a Republican governor who only defeated his 2018 opponent, a black woman, through what were, at the minimum, highly questionable voter suppression tactics.
HB 481 does not go into effect until January 2020 — the delayed impact is due to the law’s classification of fetuses as “minor dependents,” which, as one Democratic lawmaker noted, subjected the law to rules that any new tax exemptions or deductions go into effect on January 1. Abortion rights groups are already planning legal challenges, and HB 481 and its Alabama counterpart could become the vehicles for the conservative Roberts Court to overturn Roe v. Wade in its entirety should it so desire.
But the Supreme Court could go even further. Some of the most radical elements of the antiabortion movement have called for the court to not simply kick the abortion issue back to the states, since blue states like New York and California are extremely unlikely to pass criminal abortion bans. Rather, they are urging that the court use the equal protection clause of the 14th Amendment to enact a comprehensive national abortion ban, with corresponding criminal penalties. In practice, this would mean extending Georgia’s definition of the “legal personhood” of fetuses to the federal level.
Such an outcome to a legal challenge to HB 481 is extremely unlikely, but it cannot be dismissed out of hand. The lesson of the new wave of abortion laws is that, if the antiabortion movement has its way, we’re not headed to the pre-Roe days. We’re headed somewhere worse.