The Supreme Court announced its official decision of Dobbs v. Jackson Women's Health Organization on June 24, 2022. In Dobbs, the Court overrules Roe v. Wade and 50 years of legal precedent and returns the issue of abortion rights to the states. Many states acted before the ruling came down, so the legal ripple effects are well underway.
This article aims to explain how criminal laws play a role when it comes to abortion rights. It will review new and anticipated abortion restrictions and their criminal penalties. We'll also explore criminal charges used by prosecutors over the years to punish acts taken by women during or after their pregnancies. For the past 50 years, Roe v. Wade arguably limited such prosecutions against women, but prosecutions happened all the same. Now the question is will more women go to jail or prison for abortions, miscarriages, and stillbirths now that Roe v. Wade is officially gone? It's possible.
Now that the Court officially overruled Roe v. Wade, the legal landscape surrounding abortions is poised for a drastic upheaval—some of it, in fact, is happening now. In anticipation of the overruling of Roe, states were busy preparing on both sides of the issue.
And, of course, future state (and possibly federal) legislative action will further change the landscape of abortion rights in the months and years to come.
So far, no. Many state laws already prohibit certain late-term abortions under Roe v. Wade. But these laws punish the abortion providers, not the women getting the abortion. While around half of the states plan to expand these abortion restrictions to earlier stages of pregnancy, so far, these states have continued to focus their criminal penalties on the abortion provider.
The same appears to be true for restrictions on medication abortions. Many women self-manage their abortions through the use of prescription drugs rather than undergoing a medical procedure. State laws that place restrictions on prescribing or mailing these drugs impose criminal liability on the prescribing physician, pharmacist, or mail-order company, rather than the woman taking the drug.
So, if abortion laws don't penalize pregnant women, what's the big deal?
In states that plan to now ban or strictly restrict abortions, abortion clinics will likely shut down or physicians will stop offering them because they won't want to risk going to jail or being sued (some post-Roe laws allow for lawsuits against abortion providers). No abortion providers means women have fewer options.
When professionals can't provide legal abortions, some women intent on having an abortion might resort to other methods—some of which may be illegal (and dangerous). While it's true that a woman can legally cross state lines to get an abortion (as no federal law makes it illegal to travel between states for an abortion), not every woman can afford to head out of state. Some states are also imposing legal roadblocks to make it more difficult for women to seek abortions out of state.
Another concern is that without Roe v. Wade prosecutors will file more criminal charges against women whose pregnancies result in miscarriages or stillbirths. Over the years, prosecutors have sought numerous criminal charges against women for acts taken during and after pregnancy, including illegal possession of drugs, feticide, and child endangerment, just to name a few. To some extent, Roe likely limited these and similar prosecutions. But with Roe out of the way, prosecutors have fewer legal hurdles to overcome in getting convictions, and states may advance legislation to support more prosecutions.
Below are criminal prosecutions that took place while Roe v. Wade was the law of the land. Some commentators and legal experts expect to see similar or more prosecutions with Roe's overruling.
As noted above, many women take prescription drugs to manage their abortions rather than undergoing a medical procedure. These self-managed abortions are legal when a woman has a valid prescription. But if a woman (or anyone for that matter) obtains abortion-inducing drugs without a prescription, they can face criminal charges for illegal possession of drugs.
Pregnant women and, in some cases, family or friends have been convicted of illegal possession of abortion-inducing drugs. In recent cases, people have ordered these drugs online from foreign companies. More women may attempt this route in the future, as several states restrict or plan to restrict a woman's ability to obtain these prescriptions via telehealth appointments or through mail-order pharmacies.
At one point, a number of states had laws making it a crime to self-induce an abortion. Most states repealed these laws after Roe was handed down. But a few states—Oklahoma, South Carolina, and Tennessee—still have these criminal laws on the books. Even though their enforceability was questionable under Roe, as recently as 2017, one Tennessee woman pled guilty to attempted procurement of a miscarriage in exchange for the prosecutor dropping attempted murder charges. She had used a coat hanger to try to end her pregnancy.
Over the years, state prosecutors in several states have filed charges against women for intentionally or recklessly engaging in illegal or risky behavior that resulted in a miscarriage, stillborn, or bodily harm to an unborn child. The exact charges varied by state. Most often, prosecutors charged these cases where the circumstances suggested that a pregnant woman took illegal drugs and a miscarriage or stillbirth resulted after the drug use. Although other facts could result in such charges, substance abuse tends to be the most common.
In the states where these kinds of charges are possible, the law typically defines an unborn child as a human being. Sometimes called "personhood" or "heartbeat" laws, these laws give unborn children certain legal protections. Quite a few states provide these protections in criminal laws, stating that for purposes of homicide, assault, and abuse crimes, an unborn child falls within their protections. In some states, personhood starts at the moment of conception. Several states have expanded their "heartbeat" laws or plan to do so in light of Dobbs.
Here are some cases where women have been prosecuted for their actions during pregnancy:
In a typical drug-related case, the woman ingests illegal street drugs like heroin, cocaine, or meth. But, in at least one case, prosecutors successfully brought charges that led to a conviction against a woman who took abortion-inducing drugs she illegally got online. The Indiana woman received a 20-year prison sentence after being convicted of feticide. Although an appellate court eventually overturned the feticide conviction, the court let her child endangerment conviction stand.
Women have also faced charges for child endangerment or neglect when their children were born alive but those children had drugs in their system. Although no state expressly criminalizes substance abuse during pregnancy, several state prosecutors have filed charges using their state's child abuse or endangerment statutes.
When prosecutors haven't been able to seek charges against a woman for behavior during pregnancy, some filed criminal charges based on a woman's actions taken after a stillbirth or miscarriage. Specifically, many have looked to their health codes or vital statistic laws for criminal charges. And they're not hard to find. Many states make it a crime to:
Using these laws, prosecutors can and have charged women who don't properly report or dispose of fetal tissue remains after having a miscarriage or stillbirth in a non-hospital setting. For instance, a jury found a 20-year-old Ohio woman guilty of abuse of a corpse for burying the remains of her stillborn child in the backyard. A Virginia woman received a 5-month jail sentence after placing her stillborn child in a trash bag, and the court of appeals upheld her conviction for concealment of a dead body.
The above examples show what was possible when Roe was the law of the land. Moving forward under Dobbs, state lawmakers and prosecutors will have a greater range of legal options to regulate abortions, options that were previously unavailable to them. Even if states don't place criminal liability directly on pregnant women for getting an abortion, that alone doesn't end the issue. As you can see, states have other laws—many already on the books and used in the past—that provide a legal basis for charging and convicting women for acts they take with respect to their pregnancies. States can easily expand on these laws, and many have already done so (before Roe was overruled). There will surely be more to come as abortion rights return to the states.