HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Tuesday, November 18, 2014

Guest Blogger Professor Maya Manian: The Criminalization of Pregnant Women

ManianIn a recent New York Times editorial, Lynn Paltrow and Jeanne Flavin bring to light the chilling reality of the criminalization of pregnant women in the United States. Stories of prosecutions of pregnant women in other countries, such as El Salvador, have received significant attention. Yet, similar stories within our own borders remain under the radar even while we constantly debate the issue of abortion.

As Paltrow and Flavin point out, the push to restrict women’s access to abortion and expand rights for fetuses impacts more than just those women specifically seeking abortion care. Anti-abortion measures threaten the rights of all pregnant women, even those who want to be pregnant. As Paltrow and Flavin’s peer-reviewed study on criminal prosecutions of pregnant women demonstrates, prosecutors and judges have relied on anti-abortion reasoning to arrest, detain, and force medical treatment on pregnant women who suffered from miscarriages, depression, or simply wanted to make their own medical decisions about how to proceed with childbirth.

Although many of the women in the cases described by Paltrow and Flavin were not seeking abortion care, the criminalization of pregnant women who seek to self-abort appears to be an increasing threat. Self-abortion has in many ways become easier and more accessible with the advent of medication abortion (although illegal medication abortion is still less safe than legal abortion). Especially as state legislatures continue to attack access to abortion with ever more restrictive laws, more women may seek to self-abort by independently accessing medications to induce a miscarriage. One physician in Texas, blocked from providing abortion care by new anti-abortion legislation, now subtly advises his patients that if they self-abort he will provide follow up care for “miscarriage management.” Such actions may be an increasingly likely scenario given Texas’ current efforts to close down most abortion clinics within its borders.

Advocates of criminalizing abortion often claim that bans on abortion would not result in imprisonment of pregnant women. Yet, recent arrests and prosecutions of women in the U.S. who obtained medication abortion on their own—allegedly unlawfully—belie that claim. Jennifer Whalen, a 39-year old mother of three, is serving a nine-to-eighteen month sentence for purchasing abortion medication on behalf of her daughter. Prosecutors charged her with offering medical consultation about abortion without a medical license, dispensing drugs without a license, and child endangerment. Idaho police arrested Jennie Linn McCormack for performing a self-abortion with pills she obtained online, claiming that she violated a law making it a felony for a woman to perform her own abortion. Many states have similar laws on the books that pre-date Roe v. Wade and advancements in medication abortion.

Opponents of abortion rights dislike medication abortion because it gives women greater access to and agency over abortion care. Although the specter of women imprisoned for undergoing an abortion may have once seemed an unlikely scenario, changes in legal rules and medical technologies have shifted the landscape of abortion access in the United States. Could increasing legal restrictions on abortion also lead to greater criminalization of pregnant women attempting medication abortion on their own? That is a question public health and women’s rights advocates should keep their eye on. 

-Professor Maya Manian

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