On one hand, the Supreme Court has located the right to an abortion under the constitutional right to privacy, which creates substantial precedent for keeping abortion legal. Despite this, the past decade has brought staggering numbers of restrictions on the right to an abortion. Hundreds of bills in dozens of states have made getting an abortion harder, if not impossible, for many women -- particularly those who are poor, young and people of color. Further, pregnancy itself has become a highly scrutinized state, and women can find themselves facing criminal prosecution for things they do while pregnant.
Earlier this year the Supreme Court placed a clear limit on the kind of legislation that makes abortion inaccessible. The justices overturned key provisions of a Texas law that would have shut down dozens of clinics and made abortion too difficult to access for millions of women in the state. On the strength of that precedent, Planned Parenthood, the ACLU and the Center for Reproductive Rights came together to file legal challenges to abortion restrictions in North Carolina, Alaska and Missouri. These groups are challenging medically unnecessary restrictions in Alaska and Missouri, and a ban on abortions after 20 weeks in North Carolina.
With no legislative experience, how are we to understand how a Trump administration will handle abortion? As it turns out, the president-elect has a long history of public remarks on the issue.
In 1999, Trump described himself as “pro-choice in every respect.” That clear support of abortion rights, however, has given way to one of the biggest flip-flops in flip-flop history.
In 2011 he declared that he had changed his mind on the question of abortion because he knew a family that was considering an abortion, didn’t have it, and now have a child that is a “total superstar, a great, great child.”
In 2015, he stumbled a bit in a CNN interview with Jake Tapper:
TAPPER: Let me ask you about a few social issues because they haven’t been issues you have been talking about for several years. I know you’re opposed to abortion.
TRUMP: Right. I’m pro-choice.
TAPPER: You’re pro-choice or pro-life?
TRUMP: I’m pro-life. I’m sorry.
After securing the Republican Party’s presidential nomination last summer, Trump chose Mike Pence as his running mate, the governor of a state that has led the way in criminalizing and incarcerating women who have abortions.
During an MSNBC interview, Chris Matthews posed a now-infamous question to Trump. "If you say abortion is a crime or abortion is murder, you have to deal with it under law,” Matthews said. “Should abortion be punished? … Do you believe in punishment for abortion, yes or no, as a principle?” Trump hedged for a while, in typical fashion, and then responded, “The answer is ... there has to be some form of punishment.”
After his narrow electoral victory, Trump sat down with Lesley Stahl of CBS News for “60 Minutes.” He said that appointing anti-choice judges would return the question of abortion “back to the states.” Stahl asked him what would become of women seeking abortions in states that banned the procedure. “Yeah, well, they’ll perhaps have to go, they’ll have to go to another state,” replied the president-elect.
This is where we are now in the saga of Donald Trump’s views on abortion. He has made clear that he will appoint anti-choice judges to the U.S. Supreme Court and that he wants the question of abortion to return to the states. His vice president-elect clearly represents a more extreme wing of Republican ideology, and supports legislation that criminalizes abortion and could imprison women who seek them.
Less than a month after Election Day, the Texas health department finalized rules that would require fetal tissue resulting from abortion or miscarriage to be cremated or buried, no matter at what stage of development. The Texas Tribune reported that state officials later clarified that these rules won’t apply to miscarriages or abortions that happen at home, nor will birth or death certificates be issued. These regulations will apply to abortion clinics, hospitals and other health care facilities. Gov. Pence signed a similar bill, that goes even farther, earlier this year in Indiana. That law, not yet in effect, would make it a criminal offense to dispose of fetal remains in any other way besides burial or cremation, including in cases of abortion, miscarriage and stillbirth.
The question of whether abortion is legal or criminal has grown harder and harder to parse as states pass restriction after restriction, increasing the number and kind of acts associated with abortion that can be punishable as a crime. In addition to limits on Medicaid coverage, regulatory roadblocks like TRAP laws and location requirements for clinics, the question of when and how women have abortions can also render their actions into crimes.
“Personhood” laws define zygotes, embryos and fetuses as “persons” separate from the pregnant woman, and possessing full legal rights. These laws aim to criminalize abortion, but also certain forms of birth control that work by preventing the embryo from implanting in the uterus. At the federal level, two bills — the Sanctity of Human Life Act and the Life at Conception Act — are introduced in Congress by anti-choice Republicans year after year. So far, they have failed each time. Fetal homicide laws and “child endangerment" laws applied to unborn fetuses have also catapulted abortion from being a health issue to being a criminal justice issue. Targets of these laws are often women of color, poor women, immigrant women and those that are drug-dependent.
In April of 2014, Tennessee Gov. Bill Haslam signed a law that allowed criminal charges against pregnant women struggling with drug dependency. The original bill allowed the state to prosecute a woman for homicide if the fetus or baby died, but it was amended to only allow charges of aggravated assault. The law expired on July 1 of this year, but not before a woman named Anna Yocca was initially charged with attempted first-degree murder for attempting an abortion with a wire hanger. She began to bleed heavily and was rushed to a hospital where she gave birth to a premature infant that survived. The infant was adopted by another family and Yocca was charged with aggravated assault with a weapon, attempted procurement of a miscarriage and attempted criminal abortion. She has been in jail since December of 2015.
In 2015, Purvi Patel of Indiana became the first woman in the U.S. to be convicted for having an illegal abortion. Though hospital tests found no trace of any abortifacient in her blood, the state of Indiana charged her with both feticide for allegedly inducing an abortion, and child neglect for allegedly having a premature baby and then allowing the baby to die. On March 30, 2015, Patel, convicted of both crimes, was sentenced to 20 years in prison. After she had spent 18 months incarcerated, the Indiana Court of Appeals overturned her conviction and Patel was released.
These two cases, alongside many others, shine a light on the dangerous confluence of abortion restrictions and criminalization. Hundreds of women have been charged with fetal endangerment, whether as a result of a drug dependency, self-induced abortion or injuring themselves unintentionally. In New York, a woman was convicted of manslaughter after being in a car accident when she wasn’t wearing a seatbelt and subsequently miscarrying.
So we return to the opening question: Can something be both legal and criminalized? Clearly, the answer is yes when it comes to abortion in America. While pro-choice advocates around the country will be paying close attention to Trump's impending Supreme Court appointment and likely challenges to Roe v. Wade, as they well should, there is another, stealthier attack on abortion rights: state and federal legislation aimed at turning pregnant women who exercise control over their own bodies into criminals.