The Dangerous Fallout of Making Abortion Illegal Is Already Happening

It was September of 2015 when a Tennessee woman named Anna Yocca allegedly stepped into a bathtub filled with warm water and inserted a wire hanger into her uterus. She lost a lot of blood very quickly, and was rushed to a nearby hospital where, at 24 weeks, she delivered a 1.5-pound baby boy.

Yocca was jailed and the infant was taken into state custody and later adopted. In December 2016, Yocca was charged with aggravated assault with a weapon and two other felony accounts derived from laws dating back to the 1800s: attempted criminal abortion and attempted procurement of a miscarriage. Because Yocca couldn’t afford to pay her bond, she was incarcerated throughout her case—a year and a half in total. In early January, she pleaded guilty to attempted procurement of a miscarriage and was released on time served.

That same week in Texas, a Republican lawmaker took what felt like an inevitable, almost logical, step in the state’s trajectory of abortion restrictions: He introduced legislation that would jail women who have the procedure.

“Right now, it’s real easy,” Tony Tinderholt, a ruddy-cheeked state representative from Arlington, told the Texas Observer. “Right now, they don’t make it important to be personally responsible because they know that they have a backup of ‘Oh, I can just go get an abortion.’”

I imagine there are remarkably few women in Texas who actually feel this way. In the years since the state legislature passed its omnibus anti-abortion law in 2013, the number of clinics in the state has dropped from 40 to 19, abortion rates have fallen, and the statewide maternal mortality rate doubled. And while parts of the law were struck down by the Supreme Court in 2016, its consequences, compounded by other barriers to access, have been disproportionately felt by black and Latina women across the state. As the procedure becomes increasingly harder to access and afford, women have and will continue to take matters into their own hands. Some will do so dangerously.

I thought of Yocca and Tinderholt while surrounded by an estimated 500,000 people at the Women’s March on Washington. In that sea of protesters, there were several signs bearing the same message: A coat hanger drawn above the words “Never going back.”

It’s a visceral image, but it’s more likely the country is heading somewhere different than a return to the era of back-alley abortions. The advent of the abortion pill and the rise of non-profit abortion funds have created safer paths to access than in 1972, and the movement to protect clinics and assist women across state lines is bigger, and better organized, than at potentially any point in its history.

“It’s not alarmist to say that hundreds of women have already been criminally prosecuted in relationship to their pregnancies.” — Nancy Rosenbloom, National Advocates for Pregnant Women

Instead, there may emerge more insidious threats—both to women who wish to terminate their pregnancies and those who want to carry them to term—in the struggle to hold whatever ground possible: the proliferation of laws that scrutinize and criminalize the pregnant body on the one hand, and the ongoing erosion of basic access to abortion and prenatal care on the other.

This isn’t an unprecedented landscape; low-income women in states like Mississippi and Texas are already living it. But it’s almost certainly going to expand now that Republicans control Congress and President Trump, whose vice president is vehemently anti-abortion, is in the White House. There are Supreme Court and federal court vacancies left to be filled, federal anti-abortion legislation that may pass, bills targeting abortion under insurance plans, and, for many Americans, the threat of no insurance at all.

Millions of women in deeply conservative states already know what the fight for reproductive health looks like as more clinics close and affordable health care moves further out of reach for millions of people. The rest of the country may soon find out.

“Prosecuting women who are alleged to have attempted abortion at home or outside of the medical context is part of a larger problem that already exists,” Nancy Rosenbloom, director of legal advocacy at National Advocates for Pregnant Women, told me over the phone. “And it certainly will get worse in the current political environment.”

“It’s not alarmist to say that hundreds of women have already been criminally prosecuted in relationship to their pregnancies,” she said. “In fact, I think it’s important to say it’s already happening.”

This reality exposes the anti-abortion movement’s false outrage in response to then-candidate Trump saying that he believed women should be punished for having illegal abortions.

At the time, the anti-abortion organization Susan B. Anthony List issued a statement saying: “Let us be clear: punishment is solely for the abortionist who profits off of the destruction of one life and the grave wounding of another.” At the same time, organizers of the March for Life, which takes place this week in Washington, DC, tweeted: “No pro-lifer would ever want to punish a woman who has chosen abortion. This is against the very nature of what we are about.”

“None of these political footballs…deal with the fact that unplanned pregnancies are still happening. None of these restrictions do anything to change the need for abortion.” — Amy Hagstrom Miller, Whole Women’s Health

Anna Yocca was incarcerated in a Rutherford county jail when these messages of condemnation went out. I covered the March for Life in January 2016—Yocca’s fifth months of incarceration. Her name went unmentioned then, too. If the anti-abortion movement sincerely believes the incarceration of women under such circumstances is antithetical to their movement, then they’re remarkably quiet about it when it actually happens.

This isn’t even the extent of how the law is used to scrutinize and surveil women’s bodies. Women who use drugs while pregnant have been prosecuted under fetal assault laws like the one that recently expired in Tennessee, and Alabama has prosecuted pregnant women using child endangerment laws designed to keep children out of meth labs.

In Wisconsin in 2014, a woman named Tamara Loertscher was jailed for 18 days, including three in solitary confinement, after a medical visit revealed she was both 14 weeks pregnant and had previously used methamphetamine and marijuana. The hospital staff reported her to social services, which then appointed her fetus a lawyer. Loertscher was charged under the state’s fetal protection law and detained until a lawyer negotiated her release.

She was one of two women that year to challenge the constitutionality of the state’s so-called “cocaine mom act” after being detained as a consequence of seeking medical care.

Prosecutors and lawmakers alike have justified these laws by claiming they’re in the interest of public health—as though steeper penalties for drug use can fill a void left by access to affordable health care—but there is no evidence, and no major medical association, that supports these claims.

A survey found that a strong majority of Americans—around 70%—opposed efforts to overturn Roe v. Wade.

Anecdotal data and common sense suggests just the opposite, Rosenbloom explained. “If women are afraid to go for prenatal care or afraid to confide in their doctors about their health issues because they might get prosecuted for it or they might get charged with neglect, it’s a bad thing,” she said. “Using the law against people like that isn’t good for anybody.”

And fighting it means talking about it, she said: “This is already happening. Women are already being punished.”

Texas women like Amy Hagstrom Miller, the founder and owner of Whole Woman’s Health, a network of clinics that provide abortion services across the South and Midwest, are fighting on multiple fronts. A landmark victory in the Supreme Court in 2016 helped keep her doors open in the state, but she is still working to meet the demand for services when 96% of counties lack an abortion provider.

“None of these political footballs…deal with the fact that unplanned pregnancies are still happening,” she told me. “None of these restrictions do anything to change the need for abortion.”

In phone calls last week, I asked Hagstrom Miller and Jessica González-Rojas, the executive director of the National Latina Institute for Reproductive Health, the same questions I asked Rosenbloom: What does the landscape in states like Texas tell us about what could happen—and how to fight—under the new administration?

“When you have to close a clinic and you tell somebody they’re going to have to travel 500 miles to have an abortion, you’re looking at them in their eyes and you know they can’t do it.” — Nancy Hagstrom Miller, Whole Women’s Health

Both told me that organizing against restrictive laws before they pass was the first line of defense, which is why there has been an acceleration of local activism in states from Texas to Missouri, Mississippi to Ohio. As the assault on reproductive health became more localized, so did people’s advocacy. But with Republicans in control of 32 state legislatures and 33 governorships, these efforts will need additional support—from broader national coalitions and local progressive groups—to build the kind of political power that will be needed to fight back and win.

The political odds aren’t in their favor, but public opinion is on their side. A majority of Americans say they believe abortion should be “legal in all cases” or “legal in most cases.” And a survey released in the first week of 2017 found that a strong majority of Americans—around 70%—opposed efforts to overturn Roe v. Wade, a finding that is consistent with nearly three decades of polling on the issue.

“It takes a tremendous amount of resources, time, and attention to take a law to the courts,” Hagstrom Miller said. “Blocking them before they get passed in the first place is a much more effective use of time and energy. Even as someone who won a landmark Supreme Court case, the law caused so much damage in the interim. So many women were harmed.”

And being cut off from access (because of distance or cost or both) means that Hagstrom Miller and González-Rojas have heard stories from women who have taken extreme measures to end unwanted pregnancies.

“And a lot of times, it’s ineffective methods,” González-Rojas said. While misoprostol, the medication used to induce on a miscarriage, is “actually a pretty effective method,” other techniques she has heard about women attempting, like punching themselves in the stomach or throwing themselves down the stairs, can be extremely dangerous. “Our stance is to do everything we possibly can to make sure clinics stay open, but we recognize that these cases might increase given the climate,” she said.

Hagstrom Miller has heard similar stories and met women in similar situations.

“When you have to close a clinic and you tell somebody they’re going to have to travel 500 miles to have an abortion, you’re looking at them in their eyes and you know they can’t do it,” she told me. She can’t advise people on how to perform their own abortions, but she knows women in desperate situations may seek out this information elsewhere and try on their own.

“As a healthcare provider,” she said, “I feel very responsible to support them, to help them understand their bodies and know what an infection looks like.” It’s essentially a harm reduction strategy, one that may become increasingly central in the reproductive health movement that may be focusing most of its energies in the coming years on preserving an already dismal status quo and guiding women through a hostile landscape.

“When you close clinics, women suffer,” Hagstrom Miller told me with a sigh toward the end of our call. History, from the time before Roe v. Wade to the present day in the Rio Grande Valley, has taught us as much. The next four years may, too.