9

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?

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  • 3
    I'm pretty sure that such laws existed historically (long before Roe, of course), and were presumably considered constitutional at the time. Whether any survive on the books today, or if there would be other modern impediments to enforcing them, I don't know. Jun 26 at 15:20
  • 1
    I think the answer that would defeat any attempts to prosecute women who had abortions during the years Roe was in effect would be unconstitutional as Post Ipso Facto, so any surviving laws would not be enforceable prior to 6/24/2022. Generally most pro-life legislation is written to punish the doctor who performs the abortion, not the woman.
    – hszmv
    Jun 27 at 15:10
  • In practice the answer is no: politics.stackexchange.com/questions/10443/… Jun 27 at 21:34

6 Answers 6

14

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.

6
  • 2
    "if he intentionally ...": Does not concern women ;-). Unless they define "he" somewhere in an unusual fashion. (On a more serious note, thanks for the answer, especially the advice to be on the lookout for wording concerning licensed personnel or legal procedures. The Arkansas clause seems universal.) Jun 26 at 16:05
  • 28
    @Peter-ReinstateMonica Modern legal interpretation under the 14th amendment considers all laws gender neutral unless expressly necessary, so this would just be taken as a standard gender neutral (or "gender ambiguous/uncertain") "he". Jun 26 at 17:50
  • You mention an example of a law that has a specific exception not to criminalize abortion. Is there any specific proposal to change it in this way? Do you know of a better example of a trigger law currently in effect like the one the question was wondering about? At present, this example seems hypothetical.
    – Davislor
    Jun 27 at 10:07
  • @Davislor You're right, but the question is twofold: it asks if it would be legally possible to enact such a law (it clearly is and this answer provides an example of how that might be done) as well as whether any such law presently exist.
    – reirab
    Jun 27 at 16:55
  • @reirab The question is whether e.g. the Arkansas exemption for women that I quoted could be legally repealed; i.e., would a repeal be constitutional and perhaps conform to common law (no idea whether that's applicable). I suppose so, and it appears to be legally more systematic to prosecute women, but I wasn't sure and hence wanted to ask. Jun 27 at 18:44
12

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.

8

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.)

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.

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  • 1
    Thanks for the answer. I thought the two questions are so closely related that it makes sense to ask them together -- the general question is a subset, in a sense: If such a law has been enacted it is obviously possible, so we have to consider the principal question only if the practical one is answered with "no". Jun 26 at 23:00
  • @Peter-ReinstateMonica Fair enough, I might’ve been a little facetious with you about that. I think there’s room for more good answers to question 2, and perhaps to provide more information on question 1, but unless an answer has something new to say about question 1, i would respectfully consider it unnecessary to answer again.
    – Davislor
    Jun 26 at 23:01
5

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.

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  • 5
    They say that for political reasons, but there have been no less than 11 women arrested in the US for miscarriages recently, one of whom is in jail right now in Oklahoma. Note that the only real difference between a miscarriage and an abortion is intent, and 1 in 4 pregnancies end with a miscarriage.
    – T.E.D.
    Jun 27 at 13:26
  • 2
    "you certainly can't arrest the postman" - Why not? Some states (want to) fine Uber drivers for the crime of driving a person from one adress to another, so why not fine the postman? Jun 27 at 13:39
  • Regarding the last paragraph, receiving something in the mail assumes that someone sent it. Depending on the circumstances, the sender could be made to face liability. Though this may be easier said than done with state laws where the state may not have any jurisdiction over the sender. The federal government could much more easily put a stop to such things if it wished to do so, though. See, for example, what happened to the people who ran Silk Road and Silk Road 2.0.
    – reirab
    Jun 27 at 17:02
  • 1
    @AmiralPatate I think there's a Supremacy Clause issue, with the explicit Constitutional obligation of the Feds to deliver the mail. Jun 27 at 17:29
  • 2
    I believe postal workers are "common carriers" which means that in exchange for not being allowed to refuse delivery due to the contents of a package they are also not liable for the contents of said package. USPS as a government-run service can only be sued if the government says it can.
    – Andrew Ray
    Jun 27 at 20:23
0

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.

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  • The Arkansas law going into effect that I quoted in my question appears to explicitly forbid prosecuting or charging pregnant women. Am I misreading the law text? Jun 28 at 9:12
  • O.K., after looking at the NYT list it appears that they don't mention prosecution of women specifically at all, so the list does not contribute much to this discussion. Jun 28 at 9:16
-1

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.

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