A Post-Roe World With Criminal Penalties Our Mothers Could Not Have Imagined

When abortion was illegal in the United States, this was a country much less likely to imprison women. Since then, both the criminal justice system and the politics of abortion have changed.
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With the 33rd anniversary of Roe v. Wade just past, many fear that it will be the last. US Supreme Court nominee Sam Alito, for example has stated that he believes that Roe, the 1973 decision recognizing a woman's fundamental right to choose to have an abortion, has no foundation in the Constitution and many are predicting that his appointment is all but guaranteed. Yet neither Sam Alito nor either side of the abortion debate has fully addressed is what a post-Roe America would look like. In fact, if Roe is overturned and abortion once again criminalized, the penalties for having an illegal abortion or helping someone get one will be far worse than anything our mothers could have imagined 30 years ago.

Today's criminal justice system is radically different from the one that existed when Roe was decided. In 1973, there were only 200,000 prisoners nationwide. Today, US prisons hold over 2 million people with 4.6 million more under the supervision of criminal justice authorities through probation and parole. Between 1970 and 2000, the general population rose by less than 40%, yet the number of people in prison and jail rose by more than 500%.

These changes have been dramatic for women. Women are six times as likely to spend time in prison as they were in the early 70's, and today more than one million are under the control of the criminal justice system. The fact that a majority of these women are mothers of young children is no deterrent to their incarceration. And, according to Amnesty International the conditions for imprisoned women are often cruel including being shackled during labor, subjected to violence, and being denied essential medical care. This is the age of retribution not rehabilitation.

Moreover, since 1973 mass incarceration has become big business. According to the Real Cost of Prisons Project, there are more prisons across America today than Wal-Marts. These prisons have to be built, maintained and supported with everything from food services, to telephone systems, to prison guards. In short, there are strong economic and political incentives that did not exist in 1973 for putting and keeping people in prison.

What does this have to do with abortion? When abortion was illegal in the United States, this was a country much less comfortable with imprisonment in general and much less likely to imprison women in particular. Before 1973, women and especially their doctors were arrested under criminal abortion laws. Law enforcement officials, however often ignored this crime and the maximum penalties, generally ranged from fines to 1-10 years imprisonment. Since then, both the criminal justice system and the politics of abortion have changed.

Eric Sterling, President of the Criminal Justice Policy Foundation notes that federal and state law enforcement agencies are twice as big as they were in 1973 and their investigative powers have been dramatically expanded. He warns that in states where abortion is re-criminalized people should expect strict enforcement with the use of stings, informants, wiretaps, computers and databases to gather evidence and obtain guilty pleas. Women who leave a state that has criminalized abortion to have one elsewhere should expect to be prosecuted upon their return.

Today's abortion debate has also changed, frequently relying on highly charged rhetoric describing abortion as killing, murder, slaughter, and even genocide. For example, a recent South Dakota Taskforce on Abortion concluded that abortion "kills an innocent human being," and has called for a complete ban on all abortions. Killing in America is generally punished with sentences of life imprisonment, and sometimes the death penalty.

In fact, since 1973 dozens of states including Texas, Arkansas, Kentucky and Illinois have passed feticide and other laws establishing independent fetal rights, with some states declaring that the unborn (from fertilization) are full legal persons for purposes of the right to life. The South Dakota Taskforce also recommends that the State Constitution to include a provision that provides "the unborn child, from the moment of conception, with the same protection of the law that the child receives after birth." Equating the zygote, embryo and fetus with full legal persons, means that in states that do ban abortion (and six have already specifically said they would) women who have illegal abortions and the doctors, clergy members, and friends who help them, are likely to be punished as murderers.

Even with Roe still in effect, there are women who have been arrested and are serving time on murder charges for having suffered unintentional stillbirths. In South Carolina, a woman was convicted of homicide by child abuse based on the scientifically unsupported claim that her drug use during pregnancy caused her to suffer a stillbirth. In Utah, a woman was charged with murder based on the claim that she caused a stillbirth by refusing to have a c-section earlier in her pregnancy. If women are now being arrested as murderers for having suffered stillbirths, one should assume that in a post-Roe world intentional abortions would be punished just as seriously

People may disagree about the odds that Roe will be overturned, or that Justice Alito will be instrumental in making it happen. But it's worth remembering that much has changed since 1973, long before states began declaring that zygotes are full persons under the law and before the US became the country with the largest prison population and the highest rate of incarceration in the world.

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