Inside the History of State Suppression of Abortion in the U.S.

Liz Coulbourn

<cite class="credit">Tina Tona</cite>
Tina Tona

Shortly after the Dobbs v. Jackson Women’s Health decision, the call to “codify Roe into law” took on new life with a spate of articles making that very claim. While there’s nothing wrong with pushing to codify abortion rights at the federal level, this call doesn’t take into account one of the biggest issues pregnant people face today: the increasing criminalization of any pregnancy not resulting in a healthy baby. Every reproductive rights framework that prioritizes abortion over women's privacy, equality, and agency is flawed.

As many as 22 million people in the US who can get pregnant and are of "reproductive age (ages 15–49)" live in states where abortion is severely restricted or entirely unavailable. Human Rights Watch has documented over 1,700 incidents of "arrests, forced medical interventions, and other deprivations of liberty of pregnant people" since 1973, with "1,331 of these cases occurring between 2006 and 2020." The Dobbs decision has further unsettled a whole body of jurisprudence that guarantees privacy, dignity, and bodily autonomy for all individuals. The ripple effects have resulted in the closure of numerous clinics across the country, making women travel longer and farther for services. The longer the trip, the fewer people can make it, and therefore, fewer people end their pregnancies. Fear of the unknown has prevented doctors from providing care and discouraged people from becoming pregnant in the first place. In some states, it has made common pregnancy outcomes, like miscarriage and stillbirths, potential criminal offenses.

This new era is posing significant threats to pregnant women's health and safety due to government overreach, criminalization, and surveillance. According to Human Rights Watch, strict abortion restrictions violate numerous constitutional and human rights, including the right to life, health, privacy, freedom from torture, and equality before the law.

Abortion under state control

In 1847, the American Medical Association (AMA) sought to criminalize abortion so that white male doctors — then the only members permitted to join the AMA — could control women's reproductive health. This is where the current system of state control over abortion originates. As Georgetown University constitutional law professor Michele Goodwin notes in her book Policing the Womb, that abortion and contraception were legal before the Civil War and both Indigenous women and European immigrants used them. Often, "the persons who performed all manner of reproductive health care were women—female midwives" and Black women comprised half the midwives, she writes. Following the end of slavery, the white male-dominated medical field—embodied by the American Medical Association—saw Black midwives as rivals in the domain of obstetrics and childbirth and drove them from the field. This launched a "full-fledged criminalization campaign" targeting "abortion and female abortion providers," Planned Parenthood’s Action Fund details in a timeline of US abortion law. Joseph DeLee, a famous 20th-century obstetrician and midwifery opponent, said in a 1915 address that "the midwife is a relic of barbarism."

It's the American Medical Association that did much to shape the abortion debate and influence public opinion regarding the procedure, prompting states to legislate. With this change, men began to litigate the procedure instead of women controlling it. In this male realm, women and the fetus are often seen as mere pawns in a political game rather than, for women specifically, as individuals with agency and autonomy.

Another significant chapter began in the 1970s and '80s with the rise of the religious right and the war on drugs, which prompted criminal prosecutions of pregnant women accused of drug use. According to Goodwin’s book, "these vulnerable women embodied the cautionary metaphor of the miner’s canary.” The "creative application" of "child abuse statutes, anticorruption laws, and drug conveyance legislation" allowed prosecutors to arrest and prosecute indigent Black pregnant people, she documents. They were charged after police checked their medical records and doctors participated in their arrests.

Jenny Brown contends in her 2019 book Birth Strike that elite policymakers are trying to discourage abortion because they are afraid the population will decline and the economy will follow suit. To achieve this goal, they compel pregnancy by making abortion and contraception more difficult to get. According to Brown, the high expense of pregnancy for those with low incomes is causing the population to decline. Instead of encouraging parenthood through paid family leave, universal health care, and subsidized child care, elite decision-makers have opted for forced pregnancy, which we are now seeing play out in the States.

Abortion left to the states

As of April 2024, abortion is banned in 14 states, with limited exceptions. Another 27 states have partial bans based on how far along a person is in their pregnancy. Florida and Georgia, for example, have banned abortion after six weeks, limiting care to four weeks after conception, and just one week after a person can find out they are pregnant, essentially outlawing the procedure.

But many states have gone further than simply restricting access. Arizona and North Carolina ban the mailing of abortion pills and require an in-person doctor's visit before they can be prescribed. Before Dobbs, Idaho, Texas, and Oklahoma passed "bounty" laws allowing citizens to sue abortion providers, along with new civil penalties, while separate legislation introduced criminal penalties including jail time. A 2021 Missouri bill would have provided the state's courts with authority over pregnancies "conceived within the state or involving Missouri residents," according to Human Rights Watch, and similar measures would have allowed private enforcement in other states. The bill was rejected.

Thirteen states also "now criminalize health care providers who perform abortions…Some states criminalize ‘aiding or abetting’ abortion, making it a crime for any individual, whether a health care provider or not," to so much as help a pregnant person. This criminalization of health care providers adds another layer of repression. Doctors were uncertain about the legal landscape and care options in the initial weeks following the Dobbs decision, putting many women at risk, including one, who, according to the Washington Post, was forced to travel out of state for a lifesaving abortion in July 2022. She had an ectopic pregnancy — a potentially dangerous condition in which the egg implants outside of the uterus — and her doctor reportedly feared running afoul of the state’s new abortion restrictions.

In a separate case detailed in the same Post article, after experiencing an incomplete miscarriage, a Wisconsin woman was left to bleed at home for 10 days. Miscarriage treatment was not provided because hospital personnel feared violating the state's abortion ban, according to the Post.

Up to a million pregnancies in the United States end in miscarriage every year and researchers estimate there were a million abortions in 2023. States that have outlawed abortion now have a vested interest in distinguishing between the two.

The surveillance tactics employed by private and government entities, such as monitoring abortion clinics and providers, further exacerbate the situation.

In April 2022, when the state had banned abortion at 20 weeks, a minor in Nebraska was sentenced for concealing the remains of a 29-week stillbirth after taking abortion pills. The guidelines for abortion pill usage state that you cannot use them beyond 10 weeks. As reported by NPR, the juvenile received a 90-day jail sentence and two years probation. The court heard the case in July of last year. Meta had shared her private communications with the police in the summer of 2022, as NPR reported. (In a public statement, Meta said the “valid legal” warrants they received “did not mention abortion at all.”)

Another woman, Latice Fisher, was charged with second-degree murder in 2017 after a stillbirth because she had been searching on her phone for “mifepristone” and “misoprostol” — the two pills used in a medication abortion — according to the Washington Post. (The murder charge was later dismissed.) In 2015, long before Roe was overturned, Purvi Patel was convicted of feticide and child neglect for allegedly inducing an abortion and sentenced to 20 years in prison. Patel has since been released after her feticide conviction was overturned. At trial, evidence included Patel's search history and private texts. Examples like Fisher and Patel highlight the extreme measures taken to penalize individuals seeking reproductive health care.

A federal right to abortion

Jia Tolentino writes in The New Yorker that the “pro-choice movement has largely ignored the growing criminalization of pregnancy, just as it has generally ignored the inadequacy of Roe.” Many abortion rights advocates, says Tolentino, have acknowledged that "poor and minority women in conservative states lost access to abortion long before this Supreme Court decision" and hoped that the people who face arrest after miscarriages are "unfortunate outliers."

Likewise, Goodwin compares a feminist focus on only codifying Roe to a world in which civil rights leaders limited their vision of civil rights to school integration alone, rather than viewing Brown v. Board of Education as just the "beginning of securing a broader bundle of rights" during the Jim Crow era.

When it comes to safeguarding pregnant people against the abuse of power by the state, the conventional reproductive rights framework falls short. Pregnancy discrimination, threats of criminal prosecution, and punishment of those who are pregnant are not considered threats to reproductive rights which begins and ends with legal abortion. This myopic view ignores the multifaceted problem of reproductive justice and the interplay between many oppressive structures that rob people of control over their own bodies.

Goodwin argues that a person's right to stay pregnant are underrepresented in the fight for reproductive rights despite the critical importance of this issue. By this limited definition of reproductive rights, the right to abortion is the only thing that is upheld. The pro-choice movement often overlooks the diverse reproductive health decisions that pregnant individuals must make, which may lead to state repression. Fighting for reproductive rights alone will lead to major blind spots, but we must demand more than abortion as a necessary precondition for justice and equal rights for all.

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