Republicans in Arkansas and Oklahoma introduced bills this week that would allow authorities to criminally prosecute pregnant people for seeking abortion care. The legislation offers a terrifying preview of what’s to come in a country that no longer has federal abortion protections.
Oklahoma Senate Bill 287 and Arkansas House Bill 1174 were proposed with the specific intent to criminalize anyone who gets an abortion. The Oklahoma legislation aims to amend the state’s near-total abortion ban to eliminate language that protects pregnant people from prosecution. The Arkansas legislation would let the state’s homicide laws apply to aborted fetuses and give them due process protections, while also repealing protections for people who “solicit, advise, encourage, or coerce a pregnant woman” to get an abortion.
Both bills include exceptions for preserving the life of a pregnant person. But as with rape and incest exemptions in bans in other states, the wording is vague and will likely force people to be at death’s door before they are legally allowed to receive lifesaving care. The Arkansas legislation also includes exceptions for miscarriages, but this may be virtually meaningless since abortion and miscarriage are medically indistinguishable.
These proposed laws, if passed, will empower law enforcement and the legal system to scrutinize, surveil and criminalize not only people seeking abortion care, but also those with wanted pregnancies. And they could deeply discourage people from seeking medical care if they have issues with their pregnancies.
HuffPost reached out to the sponsors of both bills — Oklahoma state Sen. Warren Hamilton (R) and Arkansas state Rep. Richard Womack (R) and Sen. Matt McKee (R) — but none immediately responded.
Giving the go-ahead to prosecute pregnant people is a slippery and dangerous slope that will impact anyone who can get pregnant, said Farah Diaz-Tello, senior counsel and legal director at the reproductive justice nonprofit If/When/How.
“If it is possible to criminally prosecute somebody for intentionally ending a pregnancy, that means you have to go through some kind of a process to determine whether or not that was intentional. That’s called a criminal prosecution. That’s an investigation,” she said.
“Anybody who can’t guarantee a healthy baby at the end of a pregnancy will have to undergo some type of investigation to make sure that they didn’t intentionally do something to interrupt the pregnancy or harm the pregnancy in some way.”
Currently, there are no legal hurdles to such legislation passing in deeply anti-abortion states like Arkansas and Oklahoma, but challenges will follow once the bills are enacted, Diaz-Tello predicted. People would first need to be arrested, charged and prosecuted for their pregnancy outcomes, and then the laws can face pushback in court.
Although the mainstream anti-abortion movement has long said it will not go after pregnant people — instead choosing to criminalize physicians, health care providers and anyone who helps someone get an abortion — the tide may be turning.
Abortion opponents have been reinvigorated since last year’s reversal of Roe v. Wade, the 1973 Supreme Court decision that legalized abortion natonwide. The move gave them license to campaign on policy positions that were viewed as far too extreme just two or three years ago. Six-week abortion restrictions or bans with no exceptions for rape or incest, which were once taboo, are now the policies that could help a Republican win their primary.
According to many reproductive rights advocates, the idea of criminalizing abortion-seekers is driving a rift among the procedure’s opponents. The bills in Arkansas and Oklahoma, as well as recent comments from Alabama’s attorney general, point to a growing faction in the anti-abortion movement that is heading in a much more radical direction.
But criminally targeting pregnant people in this way is not unprecedented. Prosecutors have used laws to criminalize hundreds of women in states like Alabama and Missouri for their pregnancy outcomes even when Roe v. Wade was still in force. And lawmakers in Louisiana, Texas and Iowa have attempted to pass bills targeting women who get abortions.
“This perspective is not really anything new. We’re simply more attuned to it now because of the fall of Roe,” said Diaz-Tello.
“People need to know that the guardrails that the Constitution used to provide are no longer there, so the stakes are that much higher now,” she added. “We can’t be asleep at the wheel. Everybody has to show up and say that this isn’t OK.”