The truth about abortion laws and prosecution of women

If you participate in social media, you will see many claims like this one by those who are upset about the SCOTUS Dobbs decision that overturned Roe and Casey:

First of all, they apparently don’t trust their own state governments to make laws that are fair and equitable.

Second, there is no history to indicate that this kind of thing will happen. When abortion was illegal in most of the United States, police did not go around arresting women for obtaining illegal abortions. According to

When Abortion Was Illegal, Women Were Not Jailed for Having Abortions. Here’s Why

(written in 2016):

The political claim—that women were or will be prosecuted or jailed under abortion laws—has been made so frequently by Planned Parenthood, NARAL, and NOW over the past 40 years that it has become an urban legend. It shows the astonishing power of contemporary media to make a complete falsehood into a truism.

For 30 years, abortion advocates have claimed—without any evidence and contrary to the well-documented practice of ALL 50 states—that women were jailed before Roe and would be jailed if Roe falls (or if state abortion prohibitions are reinstated).

This claim rests on not one but two falsehoods:

First, the almost uniform state policy before Roe was that abortion laws targeted abortionists, not women. Abortion laws targeted those who performed abortion, not women. In fact, the states expressly treated women as the second “victim” of abortion; state courts expressly called the woman a second “victim.” Abortionists were the exclusive target of the law.

Second, the myth that women will be jailed relies, however, on the myth that “overturning” Roe will result in the immediate re-criminalization of abortion. If Roe was overturned today, abortion would be legal in at least 42-43 states tomorrow, and likely all 50 states, for the simple reason that nearly all of the state abortion prohibitions have been either repealed or are blocked by state versions of Roe adopted by state courts. The issue is entirely academic.

[. . .]

The irony is that, instead of states prosecuting women, the exact opposite is true. To protect their own hide, it was abortionists (like the cult hero and abortionist Ruth Barnett when Oregon last prosecuted her in 1968), who, when they were prosecuted, sought to haul the women they aborted into court. As a matter of criminal evidentiary law, if the court treated the woman as an accomplice, she could not testify against the abortionist, and the case against the abortionist would be thrown out.

There are “only two cases in which a woman was charged in any State with participating in her own abortion”: from Pennsylvania in 19111 and from Texas in 1922.2 There is no documented case since 1922 in which a woman has been charged in an abortion in the United States.

Based on this record—spanning 50 states over the century before Roe v. Wade—it is even more certain that the political claim that any woman might be questioned or prosecuted for a spontaneous miscarriage has no record in history and will certainly not be the policy of any state in the future.

As indicated by more recent state abortion legislation, such as Texas, legislators are not eager to arrest and prosecute women who seek illegal abortions. Also, not a single incident can be found at any point, pre- or post-Roe, where abortion laws were used to prosecute a woman after miscarriage, as some claim will happen now that Roe has been overturned.

As of November 2019, 32 states had one or more laws that grant full immunity to the woman against prosecution for the death of her pre-born child. Additionally, Florida grants immunity through precedent set in State v. Ashley. Nine more states imply immunity through grammatical syntax of laws that suggests a third-party actor is necessary. Four states and Washington, DC, are entirely silent on the handling of criminal abortions.

The fact is that women are not, and will not be, targeted for obtaining abortions, having miscarriages, or ectopic pregnancies (another ridiculous claim). As a result of new laws, on the other hand, many babies will be saved.

This entry was posted in Abortion, Law, Social Media. Bookmark the permalink.

1 Response to The truth about abortion laws and prosecution of women

  1. Tis the way with “political footballs”…………..aggravated in recent decades by the predeliction to stirring up pearl clutching and !!!OUTRAGE!!! over every little thing that doesn’t go exactly how the left want it, to use for their own ends.

    Liked by 2 people

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.