The Supreme Court American has just revoked the ruling “Roe vs. Wade”, and experts warn it could pave the way for increased prosecutions of those seeking abortions. A month ago, a louisiana billwhich classified abortion as murderwas withdrawn after causing notable controversy, mainly for trying to subject women seeking to terminate their own pregnancies to criminal prosecution.
For years, much of the anti-abortion movement in the United States has insisted that criminalization should target those who practice it illegally, but exempt pregnant people. But that point of view is in tension with the new trajectory of a far-right current that has worked successfully to enshrine the notion of “fetal personality” in law, leading to the growing criminalization of abortions recent years in different states.
The idea that human life begins at conception, and must be protected by the state, could not restrict abortion as long as the protections afforded by law were upheld. Supreme Court with the ruling in the case “Roe vs. Wade” (known as “Jane Roe”, the pseudonym of Norma McCorvey, a pregnant woman seeking court permission to abort in texas, where abortion was illegal; and Henry Wade, the prosecutor in the case).
But with Roe no longer in force, the notion that fetuses have a separate status from the people who gestate them, driving the criminalization of at least 1700 women in relation to their pregnancies, for crimes such as homicide and drugging a minor, while dozens of state criminal codes will grant zygotes, embryos and fetuses the legal status of victims.
Penalty
Most US state laws criminalizing abortion exempt the pregnant person from criminal charges. But that did not previously prevent the arrest of Lizelle Herrera, a Texas woman charged with murder for “intentionally and knowingly causing the death of a person through a self-induced abortion. The charges were eventually dropped, and the district attorney admitted they had no legal basis: self-managed abortion remains legal in the vast majority of states (South Carolina, Oklahoma, and Nevada are exceptions).
Civil organizations that defend women in these cases warn that similar incidents could become more common now without Roe, if 26 states ban abortion as expected. “We could see prosecutors emboldened to go beyond what the law allows,” says an alarmed Farah Diaz-Tello, senior counsel and legal director of “If/When/How,” a reproductive justice group.
Diaz-Tello’s organization operates a legal helpline to advise women of their rights if they seek to manage their own abortions. And that helpline has seen a dramatic increase following the decision of the Supreme Court (which changed its composition with a conservative twist during the presidency of donald trump) that annulled the historic ruling that pregnant women have the right to abortion, and that fetuses are not persons entitled to the protections of the Constitution.
That 1973 case came with legal buts, which anti-abortion activists had objected to. for half a century. In 1989, the Supreme Court upheld a Missouri statute that stated in its preamble that “the life of every human being begins at conception” and “unborn children have protected interests in life, health, and welfare.” While that language directly conflicted with Roe, the court ruled that the preamble could stand because it did not actively restrict abortion.
Antecedent
The 1989 ruling encouraged opponents of abortion to seek to prove the “fetal personhood”. According to the National Association of Criminal Defense Lawyers, there are thousands of offenses in the Federal Penal Code that may be used against pregnant women after the fall of the Roe ruling. “We really can’t look back before 1973 for any kind of help in understanding what we’re up against,” said Dana Sussman, NAPW interim executive director.
“We are in a completely different universe when it comes to our willingness to criminalize people,” he added. Till the date, 39 states have “fetal homicide” laws. The Republican Party pressured the Supreme Court: the issue is central in the electoral debate facing the parliamentarians in Mississippi, North Dakota and Colorado. And Alabama passed a pro-fetus amendment to its 2018 constitution.
In Oklahoma meanwhile, Brittney Poolaw is currently serving a four-year sentence for manslaughter involuntary after admitting to hospital staff that she had used drugs when she miscarried.
Prosecutors and courts have interpreted the word “child” in several states (South Carolina, Alabama, and Oklahoma) to apply to fetuses throughout the criminal code. “State prosecutors in those states can use any law purporting to apply to the abuse or harm of children, to fertilized eggs, embryos and fetuses. In those states, we have already lost arguments. And we anticipate that we will lose more without Roe”, says Díaz-Tello. A setback for the abortion movement that could have worldwide echoes.
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