After the fall of Roe vs. Wade, are women at risk of criminal prosecution?

Question

The Supreme Court has reversed its previously held opinion of a constitutional right to abortion. Determining the legal status of abortion is now a matter of state law, and several states are likely to outlaw abortion under varying circumstances or even have previously passed "trigger laws" that become effective with little or no additional legislative procedure.

Arkansas is one of those states. The bill SB6 contains the wording

(c) This section does not:
        (1) Authorize the charging or conviction of a woman with any criminal offense in the death of her own unborn child;

I understand that this prevents prosecution of women involved in an abortion of their own child.

But my questions are:

1. Would it in principle be legally possible to enact a law that allows or demands prosecuting women involved in an abortion of their own child?

2. Are there in practice any laws to that effect proposed or pending?

Answer 1

A number of states, as well as the US Federal Government, have laws against "fetal homicide", under which a woman might be prosecuted. The Alabama law, to take one example, defines homicide

A person commits criminal homicide if he intentionally, knowingly, recklessly or with criminal negligence causes the death of another person

and then defines "person"

The term, when referring to the victim of a criminal homicide or assault, means a human being, including an unborn child in utero at any stage of development, regardless of viability.

The abortion exception is stated thusly:

Article 1 or Article 2 shall not apply to the death or injury to an unborn child alleged to be caused by medication or medical care or treatment provided to a pregnant woman when performed by a physician or other licensed health care provider

but this exception, which codified a result of Roe v. Wade, could be repealed. There are various reported arrests, prosecutions and convictions of women reported here in cases where the woman did not obtain the abortion through approved medical channels.

Generally, there are statutory provisions that preclude prosecution of women and physicians involved in a legal medical abortion, but you would have to carefully scrutinize the wording of those exceptions. If the exception is expressed unqualifiedly as an exception for abortion, then until the law is changed, a woman could not be prosecuting for obtaining an abortion. But if the exception is framed in terms of obtaining a legal abortion, then when abortions become illegal, prosecution of the woman becomes a possibility.

Answer 2

This Has Already Happened

Multiple times. Here's the first two I found when googling:

When a woman in Texas was arrested last week for murder for what officials called “a self-induced abortion,” the United States took notice. The case generated national headlines and outrage; a California legislator called it the “future extreme anti-abortion activists want.” By Sunday, the local district attorney had announced that his office would dismiss the indictment against the woman, Lizelle Herrera.

Texas Woman Charged with Murder

On 4 November 2019, TV stations across California blasted Chelsea Becker’s photo on their news editions. The “search was on” for a “troubled” 25-year-old woman wanted for the “murder of her unborn baby”, news anchors said, warning viewers not to approach if they spotted her but to call the authorities.

The next day, Becker was asleep at the home she was staying in when officers with the Hanford police department arrived.

“The officer had a large automatic weapon pointed at me and a K-9 [dog],” Becker, now 28, recalled in a recent interview. “I walked out and surrendered.”

Chelsea Becker, prosecuted for murder after her stillbirth, spent 16 months in jail: ‘Why did the hospital call police?’

These are far from the only incidents and it will happen far more often with the end of Roe v Wade. Women are not immune to going to prison just because they were the ones who were pregnant.

Others have been under suspicion when it became apparent that their symptoms they came in for treatment for were for a miscarriage of a pregnancy they didn't even know they were carrying yet. This is a very common occurrence:

About 10 to 20 percent of known pregnancies end in miscarriage. But the actual number is likely higher because many miscarriages occur very early in pregnancy — before you might even know about a pregnancy.

Answer 3

Question 1

In the recent case you refer to, the Supreme court held:

Held: The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.

Later in the syllabus, the majority expands on this:

the fact that many States in the late 18th and early 19th century did not criminalize pre-quickening abortions does not mean that anyone thought the States lacked the authority to do so.

So, yes.

It is rare, by the way, for a law to demand prosecution unconditionally anywhere in the United States. Normally, prosecutors only bring cases when they believe that doing so serves the public interest. However, some laws do require this, such as the mandatory-arrest and no-drop rules for domestic-violence cases in some jurisdictions.

Question 2

This site discourages us from asking a second question in the same post, but I’ll allow it.

I’ll answer for the state where I live. I don’t know the answer for all the others. (I will mention that the vast majority of Pro-Life activists say that they do not support such laws, and that they want to offer people with an unplanned pregnancy compassionate alternatives through crisis pregnancy centers instead.)

oregon

The statute for Criminal Homicide in the state of Oregon says (emphasis added)

“Human being” means a person who has been born and was alive at the time of the criminal act.

You also ask whether any such law has been proposed. As of June 26, 2022, no such initiative petition has been filed with the Oregon Secretary of State. nor has such a bill been introduced in the Oregon Legislature.

In the 2022 session, seventeen state legislators have so far filed a bill, SB 1553, that would require a “health care practitioner to exercise proper degree of care to preserve health and life of child born alive after abortion or attempted abortion.” I expect that there will be other bills filed regarding abortion in the current session.

So, in Oregon, no.

Answer 4

For reasons that are not relevant to the law, but to politics and optics, most of the pro-life movement does not support criminal charges against the woman who has an abortion. This seems very odd, because in general someone who solicits another to commit a crime is also liable. Perhaps the open secret that members of anti-abortion organizations have made exceptions for their own daughters has something to do with it.

Historically, after abortion was widely criminalized in the 19th Century for both the woman and the provider, juries often acquitted the women. Since then, most states’ laws pretended that the woman was somehow the victim of the abortion provider.

There is little doubt, however, that laws punishing the woman can be passed, as they were 150 years ago. Apparently one is already proposed in Louisiana. Indeed, this will be the only way to punish women who induce their own abortions with drugs obtainable by mail: you certainly can't arrest the postman.

UPDATE June 27: Arizona repealed its pre-Roe law making the woman (as well as the doctor) liable in case of abortion last year, in anticipation of this week’s Supreme Court decision. Arizona State Senator Wendy Rogers stated on social media that she intends to revive the law punishing the pregnant woman as well.

Answer 5

There are many states where a criminal prosecution of a pregnant woman is authorized, with one of the more convenient summaries available at the New York Times. These states include the following states with a complete ban with no meaningful exceptions (in some cases, effective in July 2022 when the timeline for the U.S. Supreme Court to revise its opinion expires):

Alabama, Arkansas, Missouri, South Dakota, Wisconsin (a felony), North Dakota, Tennessee, and Wyoming.

There are likely criminal penalties in the many other states that prohibit abortions after six or fifteen or twenty weeks respectively as well. Oklahoma and Texas have regimes of civil fines with bounty hunter style enforcement by private citizens rather than criminal offenses.

Answer 6

All these other comments are theoretical. In practice, pre-roe laws or homicide laws that do not distinguish unborn/unviable fetuses from people will not be enforced until a state official, likely the attorney general for the state, issues an opinion that abortion is now illegal in the state and women could face charges.

Missouri for example did this, and Texas, and Kentucky, and Arkansas and several more.