The Future of Criminal Prosecution for Self-Induced Abortion & Pregnancy Endangerment

The intensifying avalanche of restrictive U.S. abortion laws since 2012 has made it more difficult for many people to terminate their pregnancies. These restrictions have also had the effect of increasing what are considered illegal abortions. But the face of illegal abortion has shifted since the 1973 Roe v. Wade decision by the Supreme Court. Today’s procedures rarely resemble the back-alley abortions of the past, given the availability of medications that can effectively induce abortions and the rise of the internet as a tool women can use to procure such medications and to learn how to use them. Some things, however, have not changed. Just as pregnant women were sometimes prosecuted after aborting or attempting to abort pregnancies in the pre-Roe era, pregnant women today are still sometimes prosecuted for similar acts, even if the exact methods are different.

In the United States, pregnancy occupies a contradictory socio-legal space. For many, pregnancy and resultant parenthood are much desired (and encouraged) conditions. But being pregnant can also result in the loss of important constitutional rights, including rights to privacy, liberty, and free religious expression, along with rights to due process, freedom from cruel and unusual punishment, and equal protection. Because of the potential for such lost rights, my research argues that pregnancy legally creates a lower class of person – a situation I call “pregnancy exceptionalism.” Pregnant women hold a tenuous position under the law if they go outside legally recognized methods of abortion, either by choice or because are otherwise unable to access those methods. An examination of recent instances in which pregnant women have been prosecuted offers possible clues as to future directions of the law, insofar as reductions in pregnancy prevention services continue along with erosion of legal options for ending pregnancies.

Prosecuting Pregnant Women

Three states – Alabama, South Carolina, and Tennessee – have expanded criminal law through legislatures or courts to include what they define as “unborn children.” My research on these three states has identified nearly 900 cases of arrest of pregnant or formerly pregnant people for terminating, attempting to terminate, or otherwise causing harm to their pregnancies between 1973 and 2016. In all three states, arrests of pregnant women for these offenses occurred before formal definitions were entered into the code of law.

Other states have taken similar steps. To date, every state but Vermont and Delaware has participated in the arrest and prosecution of pregnant women, allegedly in defense of their embryos and fetuses. Most of these arrests have involved pregnant women or newborns who tested positive for drugs, but cases involving attempted suicide have also been documented. One woman who attempted to evade the police was additionally charged with reckless endangerment of a minor because she was running while pregnant. Mysteriously, two women were charged with crimes against their “unborn children” but were later released when they were found not to have been pregnant in the first place. Other arrests occurred when pregnant women attempted to abort their pregnancies illegally, or were accused of doing so.

Prosecutions of pregnant women have gotten little public attention, with some exceptions in cases where medical providers reported women who were later prosecuted:

  • In Indiana in 2013, a woman named Purvi Patel was hiding a pregnancy from her conservative Hindu parents. She expressed some ambivalence about the pregnancy and texted a friend about procuring abortion pills online. After having a miscarriage at her family’s restaurant, Patel placed the fetus in the dumpster. She eventually went to the hospital, where policy interrogated her. Later, she was arrested for causing the fetus’s death, convicted and sentenced to two concurrent 20-year sentences. An appeals court later vacated the feticide charge and reduced her sentence to 18 months.

  • In Tennessee in 2015, Anna Yocca allegedly attempted to perform a self-induced abortion using a wire clothes hanger. At 24 weeks pregnant, Yocca would have needed to travel to Washington, New York, Maryland, or Colorado to obtain a legal abortion. When she began to bleed heavily, her boyfriend drove her to the emergency room. She received medical care and her baby survived, although the baby was born prematurely and likely to have lifelong disabilities. After Yocca’s healthcare providers notified police that Yocca made “disturbing” statements about wanting to end the pregnancy, she was charged and arrested for attempted murder.

Key Questions for Continued Research

As nascent research proceeds on prosecutions of pregnant women dealing with new legal restrictions, many important questions remain to be investigated:

  • How and why are people pursuing illegal abortion in the United States?

  • How has illegal abortion changed since Roe v. Wade, both legally and practically?

  • How are state legislatures and courts addressing illegal abortion?

  • What are the characteristics of criminal cases brought against women who have sought or procured illegal abortion?

  • What are the legal arguments used in making these criminal prosecutions?

No matter the answers to these questions, it is already clear that as legal abortion becomes harder to access, women will likely seek extra-legal means of terminating undesired pregnancies, even if such efforts may result in their prosecution and imprisonment. As researchers examine the safety of newer medications and technologies for self-induced abortions, they must also explore the legal risks and treatment facing people who make use of those methods. The possibility that a new Supreme Court majority may overturn Roe v. Wade or further eviscerate legal abortion rights warrants a thorough examination of the precedents that will go into adjudicating cases like those of Puri Patel and Anna Yocca that, while rare in the past, may appear more frequently in the future. More research now can help all concerned be better prepared for the new legal as well as medical world that may arrive as legal abortions become more circumscribed in the United States.

The Michael Brown Shooting: Why the Requirement for ‘Perfect’ Victims is About Race

By the time Norma L. McCorvey was 21, she had abused drugs and was on her third child. While carrying that third child, her scheme to falsely claim she was raped in order to obtain a legal abortion put her in the path of attorneys seeking to challenge U.S. abortion laws. Those attorneys who would make her (as “Jane Roe”) the lead plaintiff in a landmark 1973 U.S. Supreme Court case that would make abortion within the first three months of pregnancy legal for all women in America and halt the deadly practice of amateur, underground abortions: Roe v. Wade. Subsequently, McCorvey, despite her background, became a national symbol of women’s rights and the fight against female oppression.

photo-2-for-ferguson-blog-post
via Twitter/PhillyPhill

Was McCorvey an angel? No. Was McCorvey free from teenage and young adulthood missteps? No. Was her right as a woman to make decisions about her own body worthy of justice and defense –regardless of her sketchy background story? Yes.

Enter Michael Brown, 18, of Ferguson, MO (2014).

An unarmed Michael Brown was shot and killed by police officer Darren Wilson on August 9, 2014 in Ferguson. Community uproar and demand for accountability, justice and legal recourse for police brutality followed the shooting. Then on the day Ferguson police officials released Wilson’s name to the media, they also released a video allegedly showing Brown stealing cigarillos from a convenience store right before his shooting. Several days later, it was ‘leaked’ that an autopsy revealed Brown had marijuana in his system on the day he was killed.

The message being sent from the video and marijuana leak was clear: Brown wasn’t an angel. Therefore, because there were no wings found on his dead body, the legitimacy of the community and others fighting for his rights and seeking justice against police brutality should be questioned.

Those looking to understand why McCorvey’s backstory did not alter public and court perception about the need for justice in her case while the exact opposite plays out in the Brown case need only know this: McCorvey is white. Brown was African-American.

Sure, a situation in both the lives of McCorvey and Brown intersected with a long-standing discriminatory American policy/law, thus garnering demands for change. The difference is that in America, there is an expectation steeped in racism that African-American victims of injustice and/or those African-Americans fighting for justice should be beyond reproach, while white victims or justice fighters can be ‘flawed’ or ‘complex.’

Just look at the African-American symbols of injustice in some of the most significant U.S. Supreme Court cases and justice movements in history: James Meredith, who integrated the University of Mississippi; Rosa Parks, who brought national attention to Jim Crow laws on public transportation; little pigtailed Ruby Bridges, 6, who stoically endured racists and violence while integrating a white Southern school; and Mildred Loving, the other half of the couple in Loving v. Virginia that struck down laws against interracial marriage. These people were so squeaky clean that if they were a floor, you could eat off of them.

Meanwhile, America is quite comfortable with its white heroes, leaders, and activists being flawed. What does it matter that Thomas Jefferson had essentially a second family with his slave Sally Hemings while President of the United States? Why should politician David Dukes let a little fact that he was a former Grand Wizard of the Ku Klux Klan stop him from being voted in by the American people as a Louisiana State Representative? Who can forget the Oscar-winning performance by Julia Roberts of Real-life Environmental Activist Erin Brockovich. The film portrays Brockovich, as a struggling single mother, who was able to expose corporate environmental crime after being hired by a boss who, when first meeting her, was able to overlook her dressed with certain upper body parts hanging out to see her ‘passion’ and ‘potential.’

As the Brown case illustrates, even teenagers are not spared from this ridiculous double standard. For teenagers doing teenager stuff resonates quite differently when that teen is African-American. I can speak from past professional experience working in a treatment center serving white, rich kids, that marijuana use is not exclusive to African-American teenagers. Many of those kids had lied and stolen to support their drug habits. Some have been violent right before my eyes toward their parents seeking help for them. But with these teens – as with the infamous “affluenza” teen, Ethan Crouch, who killed four people while driving drunk and was sentenced to not-so-hard time in a treatment center – we are supposed to understand that not being fully mature, teenagers need our support, understanding, and second chances because they have – “potential.”

By contrast, the news that Brown may have had marijuana in his system, whether true or not, has been used to illustrate his being unworthy, a “thug” (aka, N-word), not deserving of empathy, but very deserving of being shot at least six times (twice in the head) by Wilson. One need only read Twitter feeds, listen to commentators on television news programs, or read the comment section of virtually any newspaper covering the story to see examples of this thinking.

Then the video of the alleged cigarillo ‘robbery’ was released, and the judgment was swift and decisive. “HP” wrote in the New York Times comment section that the video has convinced her “that incident is no longer between a Gentle Giant and rogue cop. It is between a felon and a cop.” And then in the same comment section, “David” of Chicago reminds us that Brown could reasonably have been expected to act aggressively toward Office Wilson because “as any psychologist will tell you, past behavior predicts future behavior.”

So, Brown, whom authorities have verified did not have a criminal record, is now labeled permanently in death as a “felon.” But, of course, that’s a fair assessment because, as “David” points out, what was done in your past is always what you will do in the future.

But, again, such reasoning only applies to African-American victims.

When then 20-year-old Caroline Giuliani, daughter of former New York City Mayor Rudy Giuliani, was arrested in 2010 for shoplifting at a Sephora in Manhattan, the worst she was called was “rebellious” (New York Post). The New York Daily News even went so far as to try to milk sympathy for her plight by calling her a “Poor Little Rich Girl,” while even interviewing a psychologist on what could motivate someone like her to steal. They even included a photo of her as a cute little girl to further drive home the point of her innate innocence to readers. Absent were the references to predictions of “future behavior” of the then Harvard student –– flawed, but worthy of a chance at a bright future. And unless my ears and eyes are failing me, I missed that psychological assessment in media accounts of Brown’s alleged cigarillo swipe.

The double-standard extends to those who are fighting against injustice, as well. Lest we forget, the Occupy Wall Street Movement took over – let me repeat – took over a park in downtown Manhattan for months, met police efforts to shut them down with righteous resistance. They disrupted as they raised awareness about economic inequality between the 99% and the One Percent. Yes, people were tear-gassed. Yes, people were arrested. Yes it was mayhem. Yes it was chaos. Yes it was an uprising watched worldwide. These people meant business. Now, there was some public and media resentment toward the movement, including Newt Gingrich famously telling the large hipster contingent of the movement to “go get a job right after you take a bath.” But unless my ears are failing me, I don’t recall these activists being referred to as “animals” deserving of being murdered by the police, despite whatever flaws critics thought Occupy protestors possessed.

But “animal” has actually been mild compared to other things said about African-American protestors in Ferguson. Some Americans have consistently questioned the protestors’ right to speak out about injustice toward the black community by whites because of “black on black crime,” looting,” and other irrelevant topics. In other words, how can a race of people, whose issues and actions are ‘complex’ and not perfect like their grandmother’s sweet potato pie, think they have the right to demand justice against police killing unarmed black men and women? That’s like saying white Americans should just sit back and accept the murders of loved ones at the hands of serial killers because the vast majority of serial killers are white males.

But, then again, one can’t really expect a logical assessment of Ferguson protestors from people who view them as racially inferior people whose lives are not worth much at all. “If looting and firebombing, destruction of property and violence is their reaction to everything, perhaps we haven’t shot enough?” asked “Kevin,” of Kansas, on a New York Times comment section, without any shame.

But not every white person in America is drinking that Kool-Aid. Some get the double standards in both word and deed. One poignant Ferguson protestor sign carried by a white male captured on Twitter read: “At 18 Yrs old in Festus, MO, I shot a cop with a BB Gun. Why am I still alive?”

People who are looking for perfection from fighters for justice are living in an alternate reality. For as history has shown, those who are willing to risk it all to right a wrong or correct injustice are not usually those who have the most to lose in the way of big and shiny things like cars, houses, boats, and the corner office. It is usually those with nothing left to lose, nowhere to go but up. And life at the bottom ain’t no crystal stair. Therefore, the people at the bottom will not be perfect. They may look the brother in the now famous Ferguson protest photo, who slings a fiery object back at police with one hand while holding a bag of potato chips in the other. But they will be courageous.

Author James Baldwin, himself a participant in the black Civil Rights’ Movement of the 60s, understood this formidable combination when he said: “the most dangerous creation in any society is the man who has nothing left to lose.”

But don’t’ be misled that this powerful fact is lost on those participating in the smear campaigns of Michael Brown, Eric Garner before him, Renisha McBride before him, Jordan Davis before her, and Trayvon Martin before him.

Their goal in focusing on the imperfections of victims and protestors is to silence minority concerns through de-legitimization. Their goal is to create a smoke screen to blind others to the obvious injustices. Their goal is to steer the discourse off-topic in hopes that it will remain there and never find its way back.

It’s an old tactic. It’s a pretty transparent tactic, but people still accept it in America.

The reason is as clear as black and white.

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