Let’s be clear: the recent abortion bans will not stop abortions from happening. They will only ensure that some groups — specifically, poor people and people of color — are disproportionately punished when seeking access to abortions.
Our nation is still spinning as restrictive bills continue to be signed into law — although not enacted — by eager conservative governors. From laws in Georgia and Ohio that end abortion access at six-weeks to Alabama’s near total ban, Texas’ numerous proposed bans, and Missouri’s proposed eight-week ban (all arbitrary gestational limits with no medical basis), many reading the headlines are feeling the whiplash and wondering where this all comes from.
Unfortunately, early pregnancy abortion bans are not new. Most attempts to have these bans codified into law have been rejected by the courts because they are unconstitutional at face value; because of this, passing and defending abortion bans can be seen as a waste of millions of taxpayer dollars.
Anti-abortion advocates in Alabama have been clear they hope the state’s new law will lead to a court challenge that will reach the Supreme Court, and have said they believe President Trump’s appointees to that court will help overturn the Roe v. Wade decision. What anti-abortion advocates have not been articulating is what consequences people who have abortions under these bans would experience.
Anti-abortion lawmakers claim it’s never their intention to punish those of us who have abortions; in fact, some new laws, like Alabama’s, don’t outline punishments for women who receive abortions, but for providers, which suggest lawmakers believe we’ve been duped by abortion providers and couldn’t possibly make the decision freely. Logically, when an act is made illegal, there are consequences for those who perpetrate the act: But what will happen to people who still obtain abortions? As historian Leslie J. Reagan explains, the passage of abortion bans in the 1800s led to the interrogation and prosecution of abortion patients.
Unfortunately, the “future” of criminalized abortion is already here. Despite medication abortion pills, for example, being safe enough to self-administer without a provider present, most states do not allow a person to self-manage their own abortion. Should we elect to self-managing our abortions, we are considered the provider and will be prosecuted as such. The risk is not in safety: it’s in legality.
If a person who uses abortion medication thinks they need medical attention, admitting what they took could lead to prison time. Several women have already been prosecuted and jailed on suspicion of self-managing their abortions and, in Purvi Patel’s case in Indiana, were turned in to police by hospital staff. When it came time to defend these women from prosecution, the anti-abortion movement was notably missing.
Medically, a healthcare provider cannot tell the difference between someone having a spontaneous abortion (commonly known as a miscarriage) or one induced by medication abortion pills. By criminalizing abortion, anti-abortion advocates are forcing medical providers to interrogate their patients’ pregnancy outcomes, question every comment, and conspire with law enforcement to prosecute someone who was seeking medical attention. Any words uttered can become self-incriminating. Indigenous traditional herbs become suspicious. Simple misunderstandings, language barriers, or racist assumptions could land patients in jail; indeed they already have.
If abortion — and potentially, by extension, miscarriage — is criminalized, we already know who will be harmed first: The same communities already being jailed for living in our nation without the right immigration papers, the pregnant asylum seekers being shackled by US Marshals, the black and brown bodies scrutinized by police in our neighborhoods, and the same communities chastised by politicians for having too many children. The US criminal justice system has always unjustly penalized communities of color for crimes that wealthier white communities receive slight or no punishment for; studies have shown despite black and white communities using drugs at the same rate, black Americans are stopped, frisked, and prosecuted at higher rates.
The majority of people who have abortions are people of color. This is why the fight for reproductive justice is more than the right to an abortion: it’s about ensuring that families are able have the rights, resources, and safety nets to ensure families can truly thrive.
We’ve already seen this playbook before from the anti-abortion movement. First came the Hyde Amendment in 1976, a federal ban for those with public health insurance coverage, including Medicaid and the Indian Health Service. The Amendment disproportionately harms communities of color who are more likely to be enrolled in Medicaid and have trouble affording emergency expenses like abortions.
Then came the Planned Parenthood v. Casey Supreme Court decision which allowed for a barrage of ridiculous restrictions creating a labyrinth of financial and logistical barriers for patients to navigate, like 24-72 hour waiting periods and requiring judicial bypasses. All of these barriers, again, disproportionately fall on communities of color, which are less likely to be able to miss multiple days of work for medically unnecessary appointments, and minors are less likely to obtain permission from their legal guardian due to family structure, immigration status, or incarceration.
The anti-abortion movement has always used racist dog whistles — like comparing abortion to slavery or black women having abortions to slaughtering puppies — and white supremacist rhetoric to further their goals, while claiming to care about us. The current movement to criminalize abortion is no different, and the fact that it’s happening in Southern states with high populations of people of color, and almost no support from legislators of color, should be a clear sign.
In actuality, any abortion restriction is extreme. They are extreme to those of us trying to navigate insurance policies, time off of work or school, finding money for the procedure, the time and cost of traveling to a faraway clinic, language barriers, childcare, going to court to get a judge’s permission, and more. None of this was ever about whether the abortion is early in the pregnancy or later, it’s about controlling who gets to make that decision. It’s a punishment for defiance.
Anti-abortion advocates used to push for abortion restrictions under the guise of protecting our health and safety, but they’ve finally shed all pretense and shown us who they really are: misogynistic power hungry ideologues who refuse to concede until we are punished for daring to decide. There is no middle ground on abortion. There never was. Now, we’re not only fighting for our right to an abortion, but to stay out of jail for obtaining it.
Renee Bracey Sherman is a writer and reproductive justice activist.