Regardless of your position on abortion, I encourage you to reconsider the laws being introduced across the nation that will criminalize people who receive or provide abortion services. These laws mirror other policy decisions that use the criminal justice system to address public health issues and, in the process, have a detrimental impact on our most vulnerable populations.
Past Failures of the Punitive Approach
The best example of this is the decades of punitive drug laws that criminalize the disease of addiction. These laws have contributed to mass incarceration and exorbitant costs that draw resources away from public health and other social services needed to address addiction in a humane and effective way. National data suggests that this punitive approach has led to the disproportionate imprisonment of poor people and persons of color and done nothing to reduce rates of addiction or associated public safety risks.
Repeating Previous Mistakes
We are now in danger of repeating these mistakes with new anti-abortion laws that come with harsh penalties attached to their violation. While existing laws already allow for the prosecution of medical providers that violate abortion restrictions, their enforcement has been extremely rare. Many of the new laws include stronger language about charging medical providers who perform an abortion with felonies that could be penalized by 1-15 years in prison, up to $15,000 in fines, or both.
Of more concern are the 13 states that have introduced bills calling for the prosecution of women who get an abortion. This is a first in the US, where even the staunchest of pro-life groups have drawn the line at laws that would harm women for getting abortions. An open letter to the legislature signed by over 70 pro-life groups said “we state unequivocally that any measure seeking to criminalize or punish women is not pro-life and we stand firmly opposed to such efforts.” The recent proliferation of strict anti-abortion laws in the US also raises read flags for advocacy groups. Once such group, the National Institute for Reproductive Health states that “criminalizing abortion would have disastrous effects: It would deprive millions of women the access to abortion care they need and deserve. It would disproportionately affect and criminalize people of color, low-income individuals, and underserved communities.”
Practicality of Laws Being Considered
There are practical implications associated with the passage of recent anti-abortion laws that support criminalization. We are left to wonder if state and federal legislators have really thought about how these abortion laws will play out in criminal courts that are already overwhelmed with cases. For example, how are courts going to resolve disputes surrounding ambiguous medical issues like the gestational age of the fetus, or whether or not the pregnancy presents risk to the mother’s life or the baby’s survival, to determine if a medical provider performed an illegal abortion? More importantly, how would these court cases against women and providers square with HIPPA regulations? That is, will the women’s personal medical records be protected in criminal courts where proceedings and records are subject to open records laws?
Impacts on Individuals, Communities and an Already Overtaxed Correctional System
It is difficult to imagine how persons convicted of violating anti-abortion laws will fare in the correctional system. What is a proportionate punishment for providing or receiving abortion services – is it a low-level felony or does it fall somewhere between a robbery and a rape? Are we really going to imprison these women and service providers who present no risk to public safety in crowded and potentially dangerous facilities? Who are we going to let out to make room for them?
If they are placed on probation, will they have to abide by the 16 or so standard conditions all probationers are expected to follow to reduce their risk of subsequent criminal behavior? Maybe fines would be the preferred disposition; this could work for medical providers but sentences for women receiving abortion services would most likely default to another, more intrusive type of punishment for those who are unable to pay the fines. Beyond the punishment itself, are the longer-term collateral consequences of involvement in the criminal justice system. Medical providers will lose their licenses and their livelihood. Women will be shamed for what should be a very private matter. Medical providers and women will both lose their status within the community. Both will have to check the box on employment applications to indicate their felony conviction. Both will lose their right to vote.
Finding Effective and Fair Approaches to the Issues
These issues challenge the fundamental fairness of these anti-abortion laws. Before passing any laws, legislators should ask themselves if the perceived benefits of these laws outweigh their personal, social, and governmental cost. In general, the literature on the effectiveness of deterrence-based policies, is grim. According to the Guttmacher Institute, a leading research and policy organization committed to advancing sexual and reproductive health and rights, there is no evidence that stricter policies or harsher penalties will reduce the number of abortions. International data reveals that the rate of abortion is similar in countries with a complete ban on abortion to countries with laws allowing for legal abortions. It seems that women who decide abortion is best for themselves, their family, and the unborn child are willing to take the heightened risk presented by restrictive abortion laws.
Although pro-life and pro-choice groups argue for extremely disparate approaches, they seem to have two common interests: they both want to ensure abortion laws don’t harm women during this vulnerable time in their lives, and they both have an interest in reducing the number of unintended pregnancies that lead to abortions. Data challenges the idea that these goals can be attained with more restrictive abortion laws. At this critical juncture, it is imperative that we, as a country, step back from our own personal beliefs about the morality of abortion and consider a more effective and fair approach for addressing these common interests.
By: Betsy Matthews, Ph.D., associate professor, EKU School of Justice Studies
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“An Open Letter to State Lawmakers from America’s Leading Pro-Life Organizations.” National Right to Life, May, 22, 2022, https://www.nrlc.org/.
“Abortion: Health Care, Not a Crime.” The National Institute for Reproductive Health, https://www.nirhealth.org/what-we-do/proactive-policy/decriminalizing-abortion/