ARI SHAPIRO, HOST:
Since the Supreme Court struck down the constitutional right to end a pregnancy, demand for abortion pills has soared. In some states, using those pills or helping others could be grounds for prosecution. A new report says even before the Dobbs ruling, prosecutors were already going after people for self-managed abortion. Laura Huss is the lead author of the report. She's with If/When/How, a legal organization that supports abortion rights. Welcome to ALL THINGS CONSIDERED.
LAURA HUSS: Thank you so much for having me, Ari.
SHAPIRO: So in this report, you looked at investigations and prosecutions going back to the year 2000. And what did you find?
HUSS: For the last two years, I've been leading this research where we've documented 61 cases between the years 2000 and 2020 where people have been criminally investigated or arrested for allegedly self-managing their own abortions or helping someone else do so. Preliminary research from this report found that among data available, the majority of people who were criminalized self-managed exclusively with medication abortion and were living in poverty. People of color were disproportionately represented when compared to the larger population. And 74% of the adult cases involve the criminalization of the person for self-managing their own abortion, whereas 26% involved people helping others self-manage.
SHAPIRO: And tell us about the laws that prosecutors used because you found that many prosecutors prosecuted folks under statutes that don't necessarily focus on abortion specifically. In fact, a very small number of states specifically have laws limiting self-managed abortion. So what were some examples of laws that prosecutors used?
HUSS: So today, only Oklahoma, Nevada and South Carolina still have laws on their books that criminalize self-managed abortion. But cases in our research occurred in 26 states. So what this means is that overzealous prosecutors and police misapplied criminal laws to arrest people.
SHAPIRO: Tell us some of the laws they used.
HUSS: What we've seen is that laws meant to address the mishandling of human remains, concealment of a birth, practicing medicine without a license, child abuse and assault and murder and homicide were all misapplied to allegations of self-managed abortion.
SHAPIRO: Many states, even before the Dobbs ruling, did have limitations on abortion. Like, late-term abortions were illegal in many states. And so if somebody did a self-managed abortion, ended a pregnancy at home, like, in the second or third trimester, shouldn't a prosecutor be able to investigate and charge them for that if it violates state law regulating abortion?
HUSS: So in our research, we did find that among the cases where gestational age was mentioned, the vast majority of criminalized cases involve people in their second or third trimester. But we, as an organization, think it's very important that people who have abortions later in pregnancy are not stigmatized and have support when and where they need it.
SHAPIRO: It's one thing to be investigated or arrested. It's another to be convicted. What were the typical outcomes in these cases?
HUSS: In these cases, the vast majority led to an arrest of those, and the vast majority proceeded through the criminal court process. Most cases ended with a guilty plea, but then about a quarter were dropped or dismissed by either the prosecutor or the court, really affirming the way in which advocates can challenge charges when they're misapplied. But whether they were convicted or not, several people lost custody of their children temporarily or permanently. But then criminalization also led to people being shamed and ostracized in their communities, including needing to move due to threats at their homes or changing their names because they were unable to get or keep jobs.
SHAPIRO: You've looked at the last 20 years and found more than 60 examples of people being prosecuted for self-managed abortions. That was under Roe and Casey. What do you expect the next 20 years to look like just in terms of numbers?
HUSS: Concrete numbers I can't project. But what we've known is that new cases will continue to happen. So we're likely to see more and more cases of abortion criminalization, and the cases from the last 20 years show us what happens when racist and unjust systems take hold of abortion legality.
SHAPIRO: Laura Huss of the group If/When/How: Lawyering for Reproductive Justice. She is the lead author of a new report on criminalization of self-managed abortions. Thank you.
HUSS: Thank you so much for having me.
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