As Roe v Wade faces a direct challenge, criminal defense attorneys, prosecutors, local judges and cops begin to lay out what it would look like to criminalize abortion
In the early 1970s, law enforcement leaders in Chicago decided the practice of illegal abortion was intolerable in their city and, in a mostly forgotten chapter of history, undertook a campaign to root out those who performed the procedure in secret.
On a tip, police turned their attention to “Call Jane”, a feminist collective of young women who, since 1965, had provided safe but illegal abortions to roughly 3,000 Chicagoans per year. The collective was raided after two Catholic women told police their sister-in-law planned to have an abortion performed by the group.
A Chicago homicide detective was assigned to the case and traced “Jane” to the South Shore neighborhood, bordered by the blue waters of Lake Michigan. There, police raided an apartment, arrested nearly 50 people for questioning, and sent three women who were actively undergoing abortion treatment to the hospital.
Seven women were charged with 11 counts of performing an abortion and conspiracy to commit abortion. They would soon be dubbed the “Abortion Seven” by newspapers. But the Call Jane members protected people they served – they even ate index cards detailing patients’ contact information.
Then, in 1973, the Abortion Seven had a reprieve. Prosecutors abandoned the case when supreme court justices issued a landmark ruling in the case of Roe v Wade, effectively legalizing abortion across the US.
In Roe, the court affirmed that access to safe and legal abortion was a constitutional right. The court ruled that states could not ban abortion before a fetus can survive outside the womb, roughly considered to be 24 weeks gestation (a full term pregnancy is considered to be 39 weeks).
Now, Roe faces a direct challenge. US supreme court justices have taken up the case of Dobbs v Jackson Women’s Health Clinic, in which they will consider whether the state of Mississippi can ban nearly all abortion from 15 weeks. Abortion advocates believe the choice to take the case implies that at last four justices see it as a chance to reconsider the precedent set by Roe.
Oral arguments in the case are set to be heard on 1 December, with a ruling expected in June 2022. But already, pro-choice campaigners are warning of a future where abortion may no longer be legal in the majority of the US, and where prosecutions like that of the “Call Jane” collective could once again become a reality.
In court briefs and reports, defense attorneys, prosecutors, judges, international human rights experts and academics have begun to unpick what a return to illegal abortion might look like in a country with a vast law enforcement apparatus, with the world’s largest incarcerated population, and with women as America’s fastest growing imprisoned demographic.
“It’s like a thought experiment – to think about what ‘Call Jane’ would look like,” in the modern era, said Cynthia Conte-Cook, a technology fellow with the Ford Foundation. Her work in gender, racial and ethnic justice explores how law enforcement could use the data produced by digital infrastructure – phones, internet browsers, social media – to prosecute people who seek or aid abortions, should Roe v Wade be overturned, and the procedure become illegal in some states once again.
A single mobile phone could reveal the entire collective, Conte-Cook warned. Just one encounter with law enforcement – a traffic stop, a search, an arrest – could expose the entire network “through digital connections”.
‘So much harsher’
With the supreme court scheduled to hear oral arguments on the most consequential abortion rights case in nearly five decades this week, Conte-Cook is not the only person entertaining such thoughts.
If Roe v Wade were to be overturned, at least 26 states hostile to abortion would outlaw abortion either immediately or as quickly as possible, according to the Guttmacher Institute, a pro-choice research organization. Abortion advocates believe this would likely result in desperate people (who have the resources) seeking abortions in more liberal states where the procedure remains legal, such as Illinois or New York. In just one example, Louisiana has passed a “trigger-law” designed to outlaw abortion if Roe is overturned. A person from Louisiana seeking an abortion would need to reach Kansas to obtain one legally.
However, most people are unlikely to make that long, expensive and arduous journey. Campaigners warn that poor, young and people of color are far more likely to turn to illegal methods, creating another layer of racism and classism in the criminal justice system, alongside the same preventable public health disaster seen before Roe.
Miriam Krinsky, the executive director of Fair and Just Prosecution, a group that educates newly elected local prosecutors, said her group’s brief filed to the supreme court regarding the Mississippi case “reflects a growing recognition that overturning 50 years of precedent and potentially criminalizing personal healthcare decisions could have incredibly dire consequences”. The brief was co-signed by nearly 100 prosecutors, police and high-ranking former Department of Justice officials.
“This is not just blue, urban-area elected prosecutors and law enforcement leaders – these are leaders from New York and California and everywhere in between – urban, rural, red states, blue states. District attorneys in Texas, Georgia, Missouri, Wisconsin,” said Krinsky, speaking about those who signed the brief. “It’s not just a voice that comes from so-called ‘liberal bastions’.”
The nation’s preeminent association for defense attorneys has also published a report ahead of the oral arguments that lays out a future in which the US could undertake “rampant criminalization” and “mass incarceration on an unprecedented scale” in the name of the unborn.
“States are laying the groundwork now, and have been laying the groundwork for criminal penalties that are completely different,” than the pre-Roe era, said Lindsay A Lewis, a criminal defense attorney in New York who co-authored a report on abortion for the National Association of Criminal Defense Attorneys (NACDL), the first such report in the organization’s history.
“They are so much more advanced, and so much harsher than what existed before Roe was enacted.”
State legislatures have spent recent decades “modifying their criminal codes” in ways that “completely changes the calculus when it comes to what it would mean to go back to pre-Roe times,” said Lewis.
Criminal charges could come from specific abortion laws, but also from criminal codes that penalize attempted crimes, conspiracies and accomplices to crime, all relics laws developed during the US’s so-called war on drugs. Those laws “could subject a wide range of individuals to criminal penalties if Roe is overturned,” the NACDL report outlines, including prosecuting people from states where the procedure is illegal who attempt to seek abortions in states where it remains legal.
For example, Louisiana law defines an “accomplice” to a crime as anyone involved in its commission, even tangentially, whether “present or absent” if they aid, abet or even counsel someone. Experts say this could be deployed against a wide range of friends, loved ones or counselors, such as clergy or abortion fund networks which help shepherd people to clinics.
As Lewis and her co-authors laid out, there are thousands of laws like Louisiana’s across the country. What’s more, recent prosecutions of pregnant people also show how digital evidence can be used as powerful prosecutorial tools.
More than 2,000 police agencies across the US have already purchased “mass extraction” technology that allows them to download, organize and archive a phone’s entire contents. The technology is sometimes called a “window into the soul”. This digital evidence has then been used to identify search queries for abortion pills, including in the prosecution of Latice Fisher, a mother of three in Mississippi.
Fisher gave birth to a stillborn child. The child was pronounced dead at Fisher’s home by emergency responders. Prosecutors used Fisher’s cell phone records to show she had searched for abortion pills online before her child was stillborn, and brought charges against her twice.
Prosecutors dropped the first case amid criticism of an archaic test used to determine whether an infant is born alive. Prosecutors then tried to indict Fisher again, but a grand jury refused to indict her when presented with scientifically accurate information.
“There are many possibilities, and one way that I have tried to imagine what those possibilities could be is looking at the way surveillance technology is used today on investigating crimes related to sex work,” said Conte-Cook.
Conte-Cook said police may choose to set a “honey pot”, in which law enforcement sets up a fake website to entice people seeking abortion pills to provide their contact information. They could use “reverse geo-fencing” technology, to create a digital border around a location of interest – perhaps a clinic – and identify all phones that enter.
“The danger about a world where the states can criminalize abortion, again, is that the tools they have to investigate every crime have increased exponentially with surveillance technology,” said Conte-Cook.
‘Every single one of these is a human rights violation’
Other American historians, such as Leslie J Reagan, the author of When Abortion Was a Crime, have warned of Ceausescu-like regimes where prenatal care becomes about ensuring “all pregnancies are progressing to term”, and authorities monitor menstrual cycles. In Missouri, health department officials have admitted to monitoring periods to identify “failed medical abortions”, part of a bid to close the state’s last abortion clinic.
In a brief to the supreme court, the United Nations special rapporteur on the right to health warned that overturning Roe v Wade and banning or criminalizing abortion would be “irreconcilable” with international human rights laws. Even so, some states have already instituted bans, such as Texas which banned the vast majority of abortions.
Particularly in the south, prosecutions of pregnant people have already taken place recently, even when they have given birth to healthy babies. Advocates said these contested prosecutions, often dropped under public pressure or overturned on appeal, are evidence of the zeal some prosecutors have for criminalizing pregnancy.
Alabama has prosecuted nearly 500 women since 2006 for allegedly exposing a fetus to a “controlled substance” in the womb, even including prescription painkillers. The charge carries a potential 10-year prison sentence, if the child is born healthy (more if the baby is not), and the controlled substance was prescribed to the person under investigation.
“The Alabama supreme court in two decisions says we treat the unborn as persons,” said Lynne Paltrow, executive director of National Advocates for Pregnant Women, which has helped provide counsel to people charged under such statutes.
In South Carolina, courts have said the word “child” in state laws should be interpreted to include unborn fetuses, meaning people could be held liable for child abuse during pregnancy. Oklahoma recently sentenced 21-year-old Brittney Poolaw to four years in prison after miscarrying, following use of methamphetamine, though there is no evidence drug use caused the miscarriage.
“The most recent published figures cite 24 people since the year 2000 who have been criminally punished for ending a pregnancy or helping a loved one do so,” said Farah Diaz-Tello, senior counsel and legal director for If/When/How.
Diaz-Tello said her organization is now conducting research which will likely prove twice as many people per year have been prosecuted.
“Every single one of these is a human rights violation,” said Diaz-Tello. “Any non-zero number should be shocking, should be alarming.”