Pregnancy Criminalization in the US Is an “Avoidable Human Rights Crisis”

A new report from legal reproductive justice group If/When/How found that between 2000 and 2020, 61 people, including seven minors, were criminally investigated or arrested for allegedly ending their own pregnancies or helping someone else to do so.

“The United States is in the midst of a completely avoidable human rights crisis,” the report says.

During the period of this research, abortion was still constitutionally protected under Roe v. Wade and medication abortion was available for people to safely and effectively end a pregnancy. But 61 people were still criminalized across 26 states for self-managing their abortions — despite only seven states explicitly banning self-managed abortions.

In a majority of cases, police and prosecutors criminalized people under laws never intended or allowed to be used for self-managed abortion, including laws related to fetal remains, child abuse, felony assault or assault of an unborn child, practicing medicine without a license, or homicide and murder.

“The array of charge types used leaves people who self-manage abortions in a murky state of legal risk, especially when there is no applicable statute prohibiting self-managed abortion in the vast majority of states,” the report explains.

Once police were contacted regarding an adult who allegedly self-managed an abortion, 87 percent of cases led to an arrest. The report found that police were most often contacted by trusted individuals, such as health care providers, social workers, or acquaintances, despite no laws requiring care providers to contact police about a self-managed abortion.

“In fact, absent a specific requirement in state law, a health care provider who reports their patient to law enforcement for self-managing an abortion is likely in violation of the Health Insurance Portability and Accountability Act, also known as HIPAA,” the report states. “What motivates a care provider to report their patient for a suspected or actual self-managed abortion may never be known. … [but] racism and bias are widely recognized characteristics of health care provision, including during pregnancy.”

The report emphasized that once a person is entangled in the criminal legal system, there are often drastic consequences and lasting harm. Even if a case concludes before an arrest is made or a person accepts a plea deal, they still can face threats to their health, stigma and isolation in their communities, financial precarity, unwanted media attention, and future surveillance.

“My hope is that this research clearly shows that our punitive legal systems should have no role in people’s health care and self-determination,” Laura Huss, Senior Researcher at If/When/How, said in a statement. “Until that future is actualized, this research is a key resource for abortion seekers and the many people who support them to understand and avoid the threats of criminalization that exist due to the oppression of our laws and abortion stigma.”

People who were criminalized for self-managing abortions often faced involvement from other state agencies, such as immigration or family regulation systems, which could lead to detainment, deportation, or loss of parental custody. The report found that 30 percent of known parents who were criminalized for a self-managed abortion, or an abortion that occurred outside of the clinical medical system and without the help of a licensed health care provider, temporarily or permanently lost custody of their children.

“Trends in criminalization of self-managed abortion are likely to mimic the patterns of marginalization that exist in our society on the basis of race, class, immigration status, and other markers,” the report explains. “[The] criminalization is about controlling certain groups of people, not behaviors.”

The researchers attest that post-Roe, “abortion seekers find themselves in a country with a much more elaborate and far-reaching culture of criminalization.” Since 2020, at least 11 people have been criminalized for self-managing an abortion or for supporting someone in self-managing an abortion. The majority of these cases took place post-Roe.

“Abortion seekers are increasingly left to figure out where they can turn and whom they can trust to get the care they need,” the report says. “As the threat of death or injury from unsafe abortion has waned for abortion seekers, the threat of criminal charges for offenses including homicide has taken precedence.”

While Nevada is the only state that has retained a self-managed abortion ban, conservative lawmakers across the country are trying to pass legislation that would impose criminal penalties on people who seek abortions.

“With access to safe and effective medication abortion, the biggest threat to someone ending their own pregnancy is facing criminal charges. It’s essential that as abortion comes under greater state surveillance and control that people who need abortions, those who support them, the media, lawmakers, and advocates understand the reality of abortion criminalization so we can ensure that people can get the care they need without threat of criminalization,” Farah Diaz-Tello, Legal Director at If/When/How, said in a statement.