By Yveka Pierre, Esq., If/When/How Litigation Counsel, Farah Diaz-Tello, J.D., If/When/How Senior Counsel, and Sara L. Ainsworth, J.D., If/When/How Senior Legal and Policy Director
Today’s Supreme Court decision in June Medical v. Russo brings a moment of relief, especially for Louisianans, who were facing the loss of nearly every abortion clinic in their state. Relying on the legal standard established in the 2016 case Whole Woman’s Health v. Hellerstedt, the Court struck down Louisiana’s unnecessary law requiring abortion providers to have hospital admitting privileges. But this plurality decision, like all abortion jurisprudence, remains an insufficient bulwark against the criminalization of people for self-determining their reproductive lives. Today, abortion is still out of reach for far too many people; it remains deeply stigmatized; the people who provide abortion care are the targets of numerous (unconstitutional) criminal bans, including one enacted just this month in Tennessee; and as a result of such restrictions, the “aura of illegality” that surrounds abortion means a higher risk of criminalization for communities who are already harmed by state violence: Black, Indigenous, and people of color (BIPOC) and people living in poverty.
The connection between stigma and criminalization is not new. In fact, it is a common pattern woven into the fabric of this country. The United States uses the criminal legal system–a system steeped in patriarchal white supremacy–to limit the rights and humanity of those it undervalues. We have a long history of creating illegality from status or condition, from the laws enacted to criminalize those with HIV, to punitive drug laws, to laws which criminalize abortions which are self-managed outside of the medical setting.
Like the criminalization of people based on a health condition, the criminalization of reproductive lives is, in part, a function of pervasive stigma. Stigma about abortion, and the people who have abortions, hits people who experience marginalization and oppressions at the intersections of race, gender, economic status, and immigration status the hardest. As we explained to the Supreme Court in our amicus brief in June Medical, stigma surrounding abortion works to discredit and devalue those who have them, and by extension those who perform them. That same stigma de-legitimizes abortion care as necessary health care, while legitimizing laws and systems that limit access to care.
“The United States uses the criminal legal system–a system steeped in patriarchal white supremacy–to limit the rights and humanity of those it undervalues. We continue to demand an end to state violence, and fight criminalization in all its forms, from policing to surveillance to criminal punishment of people and communities for self-managed abortion.”
Access and knowledge about medication abortion has made self-managed abortion safer than ever before. The abortion medications mifepristone and misoprostol, as well as misoprostol alone, have been safely used by millions of people in the U.S. and around the world, and are considered lifesaving medications by the World Health Organization. Abortion pills have increased access in remote parts of the country, allowing people to get abortions from their local clinics and even through the mail. Ample evidence demonstrates that people can safely use the medications on their own, provided that they have accurate information about how to use the medications, and are able to seek medical care in the event of a complication.
Perversely, while abortion has become safer than ever medically, it has become riskier than before legally: since the year 2000, at least 21 people have been arrested for ending a pregnancy on their own or helping a loved one who did so. These arrests and prosecutions stem from the misconception that abortion is uniquely dangerous, and as a result warrants greater surveillance, a notion which extends to those who have abortions. It is important to note that the majority of those arrested in connection to self-managing abortions have typically not been charged with the antiquated, unconstitutional criminal bans on ending one’s own pregnancy — mostly misdemeanors — still lingering on the books in 5 states. Rather, they have been charged with felonies like concealment of a birth, practicing pharmacy without a license, or even homicide. The label of criminality, even if the charges are unlawful or ultimately dropped, is enough to gravely harm a person’s life. This is why medical experts like the American Medical Association, the American College of Obstetricians and Gynecologists, and Physicians for Reproductive Health all oppose criminalization of self-managed abortion.
The misuse and misapplication of laws used to criminalize self-managing abortion is indictative of how insidious the stigma/criminalization whirlpool truly is. It uses the existing criminal legal system, already steeped in racist and patriarchal origins, to perpetuate harm against communities. Restrictions on the right to abortion, like the one the Supreme Court struck down today, exacerbate confusion and stigma around abortion, leading to a risk of unjust criminalization of those who self-manage their abortions. Restrictions on abortion, particularly those who have nothing to do with safety, cast abortion as something presumptively unsafe. Today’s decision in June Medical keeps Louisiana’s clinics open, and serves to push back against the exceptionalizing of abortion as uniquely dangerous, and therefore criminal. However, the abortion right under our jurisprudence remains insufficient, as it fails to guarantee true access to abortion with dignity and without fear of criminalization.
So what do we do now? We continue to demand an end to state violence, and fight criminalization in all its forms, from policing to surveillance to criminal punishment of people and communities. As lawyers, we understand that the law has never been a vehicle that, on its own, can reach the place where we need to go – a place where our communities are able to self determine if, when, and how we create and sustain families in safe, sustainable and flourishing communities.
But as lawyers and advocates we believe that understanding how this system works, and using it to create openings for justice, is a key to dismantling its role in perpetuating injustice. And we believe that knowledge belongs to everyone. So, please share our ReproLegalHelpline website, so that everyone who has questions about the law and self-managed abortion – or who risks arrest or has been criminalized – can access the information and resources they need to help affirm their reproductive lives. Join the call of hundreds of lawyers to end the use of the criminal legal system against people who self-manage. Put your legal skills to use by joining our RJ Lawyers Network today. And join us in demanding an end to criminalization, because the criminal legal system has no place in our reproductive lives.
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