What has been the pattern abroad in countries that ban abortion, along with United States’ own experience before Roe, previews a complicated and unequal enforcement landscape.
For years as they fought to overturn Roe v. Wade, leaders of the anti-abortion movement have stressed that prosecutions should be focused on abortion providers and others who facilitate the procedure, rather than the person seeking it. But the movement’s critics point to examples of when the criminal justice system has already — with Roe still on the books — been turned on women whose pregnancies have been purposely or inadvertently terminated.
In one 2018 case, for instance, a Mississippi woman who experienced a stillbirth was accused of second degree murder after authorities obtained her phone data and found she had searched for abortion pills. (The case was later dropped after prosecutors took a closer look at the evidence, including the use of a scientifically questionable test to supposedly determine whether the fetus had been born alive.)
Because pregnancies that end in a natural miscarriage are often indistinguishable from those terminated with a pill, it’s possible that women’s private data and the information they share with their medical staff will be weaponized by prosecutors. Even if the woman herself is not criminally liable, she may still be dragged through the law enforcement process as part of prosecutors’ efforts to investigate whether her pregnancy was illegally terminated.
“What I found in my research is that women were indeed punished, even if, you know, almost none of them are prosecuted and incarcerated for having an abortion,” said Leslie Reagan, a history professor at University of Illinois Urbana-Champaign and author of “When Abortion Was a…