To: Interested Parties
From: NARAL Pro-Choice America
Date: October 12, 2020
Last week, Vice President Mike Pence attempted to play coy on the future of Roe v. Wade at the vice presidential debate, a tactic the Radical Right often uses to obscure how out-of-touch their agenda is with public opinion. Let’s be clear: With President Donald Trump’s nomination of anti-choice Amy Coney Barrett to the U.S. Supreme Court, the threat to Roe v. Wade and reproductive freedom is more acute than ever. Barrett’s confirmation could imperil reproductive freedom—including access to abortion and the full range of reproductive healthcare including in vitro fertilization—for decades.
Trump and Mitch McConnell are rushing through a nomination that represents one of the most egregious power grabs in American history—even as more than 7 million Americans have already cast their votes. NARAL and our partners are calling on the U.S. Senate to let the people decide; the next president should fill this Supreme Court vacancy.
This is the latest step in the Republican Party’s strategy to undermine democracy in order to advance their ideological agenda of power and control. They’re hell-bent on criminalizing abortion and punishing women and pregnant people. In their estimation, if the collateral damage happens to be the actual lives, health, and well-being of women and families, so be it. They’ve spent decades chipping away at and rolling back the freedom to decide, targeting Black, Indigenous and people of color (BIPOC); those in rural areas; and those with lower incomes. If pregnancy and abortion are further criminalized and otherwise subjected to scrutiny in the courts, we can expect an even more dramatic escalation of these attacks and the real harm they cause to people and communities.
The risks of further rolling back the freedom to decide are not hypothetical—they’re already happening
The Radical Right wants to ban abortion nationwide. Further gutting or overturning Roe is the next step. Roe recognized the right to abortion, though access is already far out of reach for far too many people. But further eroding the promise of Roe would trigger a host of dire consequences, especially for BIPOC and people with low incomes. If Roe falls, many states are poised to outright outlaw abortion, either because of pre-Roe laws on the books or by anti-choice legislative action.
In this climate of increased attacks on reproductive freedom, we can anticipate a very real threat of:
- punishing those who publish or access information about abortion;
- monitoring where pregnant people and abortion providers go, what they do, what they ingest, how they regard their pregnancy, and their relationship with their doctor through online activity to present as criminal evidence;
- prosecuting pregnant people for any decisions they make or things that they do that could affect their pregnancy (including experiencing pregnancy loss via miscarriage);
- banning in vitro fertilization (IVF) and contraception.
Anti-choice, anti-freedom lawmakers are rarely asked how to even enforce the abortion bans they push. Will law enforcement officers throw a person in jail for having an abortion or losing a pregnancy? What kind of interrogation would a pregnant person or health care provider face in order to determine how a pregnancy ended? Could a health care provider or person who had an abortion or who experienced pregnancy loss serve jail time?
We are already seeing such cases play out in the United States as anti-freedom, anti-choice politicians chip away at the right to abortion on a state-level. Pregnant people are already charged or prosecuted for experiencing a pregnancy loss, for struggling with substance use during pregnancy, for self-managing abortion care, or even suspicion of it. BIPOC; those in rural areas; and those with low incomes are disproportionately the focus of these cruel overreaches. What’s more, pregnant people and healthcare providers are also being subjected to civil suits that are a troubling indicator that pregnant people are perilously close to losing rights the moment they become pregnant in a march towards “fetal personhood.”
- In 2018, Marshae Jones of Alabama was charged with manslaughter after she was shot in the stomach and miscarried. Jones was shot in what authorities say was self-defense on the part of the shooter. The grand jury in the case declined to indict the person who authorities say fired the shot. The charges were eventually dropped.
- In 2014, Jennifer Whalen of Pennsylvania was sentenced to 12 to 18 months in prison after helping her daughter obtain medication abortion. Whalen and her daughter, facing multiple barriers to accessing a nearby clinic and having no health insurance, sought the medication from a European website to end the pregnancy.
- Purvi Patel of Indiana was sentenced to 20 years in prison after self-managing an abortion. After serving 18 months in prison, the Indiana Court of Appeals ruled that Indiana law does not allow the state to prosecute people for their own abortions and overturned Patel’s sentence for “feticide.”
- Alexandra Laird of Alabama was ordered to be detained on “chemical endangerment” charges due to addiction for the duration of her pregnancy in 2016.
- Last year, an Alabama judge allowed a man to sue a healthcare provider and a pharmaceutical company for “wrongful death” of a fetus after his girlfriend received medication abortion care. Madison County Probate Judge Frank Barger’s decree explicitly stated the fetus is a person and allowed the plaintiff to name the fetus as a co-plaintiff in the suit for “wrongful death.”
- In 2009, Jessica Clyburn of South Carolina was charged with homicide for attempting suicide while pregnant. Clyburn, 22, pleaded guilty to manslaughter after surviving a suicide attempt because while she survived, she experienced pregnancy loss.