What has been the pattern overseas in countries that ban abortion, as well as the United States’ own experience before Roe, portends a complicated and uneven enforcement landscape.
For years, as they fought to overthrow Roe v. Wade, leaders of the anti-abortion movement have stressed that lawsuits should be focused on abortion providers and others who facilitate the procedure, rather than the person requesting it. But critics of the move cite examples of cases where the criminal justice system has already — with Roe still on the books — been turned against women whose pregnancies were deliberately or inadvertently terminated.
In one 2018 case, for example, a Mississippi woman who experienced a stillbirth was charged with second-degree murder after authorities obtained her phone data and found she had been researching abortion pills. (The case was later dropped after prosecutors took a closer look at the evidence, including the use of a scientifically questionable test to supposedly determine whether the fetus was born alive.)
Since pregnancies that end in a natural miscarriage are often indistinguishable from those that end in a pill, it is possible that women’s private data and the information they share with their medical staff will be weaponized by the prosecutors. Even if the woman herself is not criminally liable, she may still be drawn into the law enforcement process as part of prosecutors’ efforts to investigate the unlawful termination of her pregnancy.
“What I found in my research is that women were indeed punished, even though, you know, almost none of them are prosecuted and incarcerated for having abortions,” said Leslie Reagan, professor in history at the University of Illinois at Urbana-Champaign and author. from “When abortion was a crime”. “It’s through enforcement methods: interviewing women who sought emergency services after having abortions or trying to induce their own.”
How to Investigate Suspected Abortion
But in places where law enforcement seeks to enforce abortion bans, medical personnel who treat women with terminated pregnancies could also become a source of information for law enforcement.
In El Salvador, a country that has taken an extremely aggressive approach to enforcing its abortion ban, government officials are dispatched to hospitals to stress to medical staff their obligation to report suspicions that a patient has intentionally terminated her abortion. pregnancy, according to Michelle Oberman, a professor at Santa Clara University School of Law and author of “Her Body, Our Laws: On the Front Lines of the War on Abortion, from El Salvador to Oklahoma”.
Doctors are told that “if they don’t report these women, they themselves may face fines and other penalties,” Oberman said.
In the pre-Roe era in the United States, women who sought medical care after abortions were subjected to interrogation, Reagan said, including threats that “we will not provide medical care, medical care that you urgently, urgently need” unless they cooperate with investigations. .
Even now, the medical care women receive for terminated pregnancies may lead law enforcement to get involved, according to Dana Sussman, acting executive director of the National Advocates for Pregnant Women. Sussman’s organization provides defense attorneys and other resources to people facing charges or investigations related to pregnancy and its outcomes. The organization has documented 1,700 arrests, prosecutions, detentions or forced medical interventions between 1973 and 2020 on women related to pregnancy or pregnancy outcome, although the majority of these cases do not involve loss of life. pregnancy or abortion.
If Roe is reversed, Sussman said, “I think there will potentially be a lot more collaboration between health care providers and police.”
The Health Insurance Portability and Accountability Act — a 1996 law also known as HIPAA that establishes privacy standards for protecting patients’ personal medical information — has exceptions for law enforcement purposes, noted Sussman. “As we expand the ways in which the criminal law applies in these contexts, the HIPAA protections are going to be more limited.”
Another common tactic the organization has seen in its work is for law enforcement to use women’s personal data to find evidence.
“When you have someone who presents with pregnancy loss and the police or prosecutors are trying to prove that there was a self-directed abortion,” Sussman told CNN, “what they’re going to look at is is its digital footprint… who they communicated with and when and about what, what they searched for, purchases they made, credit card bills.”
She predicted that this kind of digital evidence “will be what prosecutors need to make that distinction, if they’re trying to distinguish between a miscarriage and a self-directed abortion.”
Fisher’s lawyers pushed back against the use of the “float test”. After prosecutors considered questions about the reliability of this method, as well as other allegations about Fisher that they deemed unsubstantiated, they dropped the original indictment. When they represented the case before the grand jury with more context around the evidence, the grand jury declined to bring new charges against Fisher.
Laurie Bertram Roberts, the co-founder of the Mississippi Reproductive Freedom Fund that helped defend Fisher, equated investigators’ use of Fisher’s Internet research to a “thought crime.”
“Let’s say at two months I’m thinking about having an abortion and looking for things. And then I decide not to, then I have a miscarriage at four and a half months,” Roberts told CNN. “That’s the risk, isn’t it? A lot of people think about getting an abortion and don’t.”
Who will be sued
Legal and historical experts on the abortion ban also expect the bulk of enforcement to fall to marginalized communities who already face the brunt of the police – some likening it to the war on drugs. .
“The likelihood of getting caught up in this police network is going to be higher for people of color and for people with lower incomes,” Reagan said.
Oberman said that in his research on the extremely robust approach of law enforcement in El Salvador, there were still only about 10 convictions a year, in the face of about 30,000 abortions that occur each year in the world. country. She said a woman’s history is what Salvadoran authorities will look at to determine if her pregnancy ended naturally or was deliberately terminated.
“Doctors in these cases tend to suspect patients whose script would suggest reasons for wanting an abortion,” she said, such as rape victims, single mothers, or those living in gang-infested territories where their personal safety is at risk. “The cases that get flagged are the ones against the poorest and most marginalized people in society. And the cases that prosecutors are moving forward on are similarly the ones where they can tell a story on mobile.”
Local prosecutors breaking the law
Anti-abortion activists say they have been consistent in their approach not to target criminal anti-abortion laws against the woman who has an abortion, and that the directive will remain front and center if Roe is overturned.
“I know we’ve seen pretty much everywhere, with very few exceptions, a real commitment by lawmakers to make it clear that the woman can’t be prosecuted,” said Katie Glenn, government affairs adviser for the anti-terrorist group. -abortion, Americans United For Life.
Jason Rapert, an Oklahoma lawmaker who sponsored a “trigger” abortion ban that will go into effect in the state if Roe is overturned, dismissed the idea that women would be targeted, calling the concerns ” new false flag that is thrown just to raise a question.”
When asked how investigators would determine if a miscarriage was natural or a medically induced abortion, Rapert replied, “You’re also talking about the honesty of the person.
“And I believe people will be able to discern what is a miscarriage and what isn’t,” Rapert, who is also the founder and president of the National Association of Christian Legislators, told CNN.
While it will be up to lawmakers to write the anti-abortion laws they hope will end the procedure, enforcement of those laws will ultimately fall to local prosecutors.
“In Starr County, the original prosecutor and those who initially assembled the charges misunderstood and misapplied the law,” said John Seago, legislative director of Right to Life Texas. “And so it’s possible, but it’s possible with any crime.”