Abortion bans are a precursor to criminalizing pregnancy

Abortion bans are a precursor to criminalizing pregnancy
Image by Mark Reinstein, Shutterstock

Last Thursday, Lizelle Herrera was arrested in Texas after indictment for murder for the alleged involvement in a self-managed abortion.

Herrera was held on a $500,000 bond. The district attorney’s office seemed unable to explain what law justified this prosecution. They ultimately dropped the charges after outcry by abortion advocates.

Criminalizing people for pregnancy outcomes. is likely to increase in frequency as it can serve as a backdoor to “personhood” for fetuses.

Texas does not currently have a clear law that justifies prosecuting abortions as criminal matters. SB8, the six-week abortion ban in effect, purposely places enforcement in the hands of civilians to bypass judicial review and avoid the involvement of state actors.

Using SB8 to prosecute someone for murder could undermine the purpose of the law. It would require state actors to enforce it.

Illegal abortions are usually charged as just that. A homicide charge requires a person to be killed. Fetuses aren’t people, according to Roe v. Wade and most historical understandings of personhood.

We still don’t know why Lizelle was charged with homicide. One possibility is the DA could have twisted the Texas fetal homicide law.

Fetal homicide laws provide a charge if violence against a pregnant woman causes the death of a fetus. When the first fetal homicide law was passed in 1986, the focus was violence against women from a third party, not charging the pregnant person for ending a pregnancy.

These laws are ripe for criminalizing pregnant people.

As of 2018, 38 states had fetal homicide laws. Twenty-nine applied those laws to the earliest stages of pregnancy. The language in many of them discusses homicide against “unborn children” or defines “person” for the purposes of homicide as including an “unborn child.”

These laws could be used as a backdoor to establishing “fetal personhood,” which would support legal theories of fetal rights.

Personhood laws go farther than outlawing abortion. They usually define personhood as beginning at fertilization, which could outlaw certain types of birth control and in vitro fertilization.

Personhood laws also place a fetus at an early stage of development as having the same rights as the adult pregnant person, which would mean abortion bans couldn’t have exceptions for the life of the mother.

It wouldn’t matter how dangerous a pregnancy was for someone. Legally, they could not prioritize their own life over the fetus.

Most importantly, using fetal homicide laws as backdoors to personhood will dramatically increase the criminalization of pregnant people, which is probably the point for many.

Using fetal homicide laws in this way doesn’t just criminalize abortion but also criminalizes “risky” behavior that could result in a miscarriage.

Every miscarriage could spark an investigation to see if the pregnant person took drugs, smoked, drank had risky sex, had an STD or maybe just didn’t eat right or exercised too much.

Obviously, such criminalization will fall disproportionately on low-income and Black and Brown women.

It’s telling that the first fetal homicide law was passed in 1986 over a decade after Roe v. Wade. Early anti-abortion laws typically framed pregnant women who sought abortions as vulnerable victims who needed to be protected from evil abortionists.

However, as feminist movements embraced abortion and self-managed abortion became viable, the anti-abortion movement has shifted its strategy to targeting pregnant people as well.

Pregnant people can be charged with endangering their fetuses even if their pregnancies result in live births. In 1997, the South Carolina Supreme Court held that women endangering their fetuses (ie, drug use) could be prosecuted under state child abuse laws.

Alabama and Tennessee have joined South Carolina in criminalizing drug use during pregnancy. Twenty-one more states have laws saying drug use during pregnancy is child abuse. With varying degrees of success, 45 states have at least attempted to prosecute women for drug use during pregnancy. Even if these prosecutions fail, any evidence of drug use during pregnancy can be used to justify removing infants from their mothers' care and putting them in foster care.

Repro justice activists and journalists like Cecilia Nowell, Imani Gandy and Laurie Bertram Roberts have been drawing attention to these cases for years. Adora Perez was charged with murder after using drugs during pregnancy. She had a stillborn son. Brittney Poolaw was convicted of manslaughter for using methamphetamine during pregnancy under the theory of drug use causing her miscarriage. Lindsay Ridgell was put on Arizona’s child abuse registry for using medical marijuana to help deal with a difficult pregnancy.

Criminalizing actions during pregnancy helps the state take children from their parents and place them in foster care, or up for adoption. There is a long history of weaponizing child protective services for forced cultural assimilation and the policing of Black motherhood.

In a case similar to Lizelle Herrera’s, Purvi Patel was charged with feticide and sentenced to decades after a self-managed abortion. Her case was overturned when the Indiana Court of Appeals ruled feticide laws were not intended to be applied to self managed abortion.

According to If/When/How, as of 2018, at least 21 people had been charged for doing self-induced abortions in 20 states. That number is at least 22 now since Lizelle Herrera was arrested.

Many of the women discussed in this article were ensnared in the criminal justice system or child protective services as a result of medical staff reporting them after they sought help.

Twenty-five states require healthcare workers to report suspected drug use during pregnancy. Eight require testing if drug use is suspected.

While Texas considers drug use during pregnancy to be child abuse, it does require healthcare workers to report suspected drug use.

This suggests the likelihood of medical staff reporting Lizelle Herrera to authorities of their own volition and possibly violating her privacy rights – not because they were legally obligated to do so.

Many cases mentioned in this article have ultimately been thrown out. But the involvement of the state during a medical crisis or traumatic miscarriage still causes harm. As abortion becomes less protected, these cases will likely increase. Some will be jail pregnant people for homicide if they have a self-managed abortion or simply do something that could be interpreted as a causing a miscarriage.

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