Episode Transcript
[00:00:00] Before we begin. This episode contains content that some listeners may find sensitive.
[00:00:07] Listener discretion is advised.
[00:00:25] Foreign.
[00:00:31] This is the Access Pregnancy Post Roe Podcast and I am Mia Brun Anti Abortion Legislators and groups have claimed for years that they do not have any interest in seeing women arrested for abortion.
[00:00:49] However, when we look at history, some women have been arrested and prosecuted.
[00:00:55] Those cases were rare, but since the Dobbs decision in June 2022, approximately 20% of U.S. states have seen legislative attempts to create laws that would allow for the criminal prosecution of the pregnant person for having an abortion.
[00:01:15] Before the Supreme Court's ruling in Roe v. Wade legalized abortion nationwide in 1973, abortion was criminalized in nearly every state during this period. The target was the provider. Law enforcement and prosecutors primarily focused their efforts on abortionists, the medical professionals, midwives, or laypeople performing the procedure.
[00:01:41] Women who sought abortions were generally considered victims and were often used as witnesses for the prosecution against the provider.
[00:01:52] There were rare cases of prosecution.
[00:01:55] Legal scholars and researchers have identified three documented cases in US History where a woman was charged with participating in her own abortion, one in Pennsylvania in 1911 and another in Texas in 1922.
[00:02:13] The charge on the Pennsylvania case was dismissed with the court viewing the woman as a victim.
[00:02:20] In the case that occurred in Texas, the woman was initially charged alongside the doctor who performed the procedure, but there was no legal record that the woman was ever tried, convicted or sentenced.
[00:02:34] Originally, she was considered a perpetrator, but then became the primary witness against her doctor, who was later convicted to five years in prison.
[00:02:44] The most famous case involved a 23 year old Florida woman who was arrested and convicted of manslaughter after hospital staff reported her illegal abortion to police in 1971.
[00:02:59] Her conviction, which carried a possible 20 year sentence, was later overturned by the Florida Supreme Court because the state's abortion law was too vague.
[00:03:11] During the nearly 50 years when Roe v. Wade protected the constitutional right to abortion, arrests and prosecutions of women for the act of having an abortion remained exceptionally rare as the procedure was legal. However, a concerning trend emerged where women were investigated, arrested, or prosecuted for other pregnancy related behaviors or outcomes, often through the misuse of existing statutes.
[00:03:44] Between 1973 and 2023, general pregnancy related charges affected at least 2000 women.
[00:03:53] These women were investigated, arrested, or prosecuted for circumstances surrounding their pregnancies.
[00:04:01] The vast majority of these cases involved allegations of substance use, youth, legal and illegal substances alike during pregnancy, with charges such as child abuse, endangerment or neglect.
[00:04:18] There were a handful of specific cases where women were arrested and charged after attempting to self manage their abortions using illicitly obtained medication or abortifacients.
[00:04:32] These were distinct from the general substance use cases because they involved a clear intent to end the pregnancy outside of a clinical setting.
[00:04:42] In some cases, women were prosecuted after experiencing miscarriages or stillbirths when authorities suspected a self managed abortion or drug use might have been involved.
[00:04:56] Direct arrests of women specifically for quote, abortion pro prior to 2022 were nearly non existent in US legal history.
[00:05:06] The primary risk of criminalization for pregnant people was through the expansion and misuse of general criminal laws related to conduct during pregnancy.
[00:05:17] When Roe v. Wade was overturned, Republicans throughout the country started to introduce legislation that would allow them to charge women with murder for abortions.
[00:05:29] Some women could be charged for miscarrying if they were discovered to have somehow caused the end of their pregnancy.
[00:05:37] Some of the other politicians have laid out the possibility for women to be punished as murderers if they use specific birth control.
[00:05:47] Ten states have introduced legislation that would classify abortion as homicide and make it punishable as such.
[00:05:56] These 10 states include Alabama, Georgia, Idaho, Indiana, Kentucky, Missouri, North Dakota, Oklahoma, South Carolina and Texas.
[00:06:10] A South Carolina bill has been introduced repeatedly that could sentence abortion patients to death, but luckily has not passed.
[00:06:20] This bill that makes abortion punishable by death has had two dozen co sponsors.
[00:06:27] There are a wide variety of anti abortion lawmakers and activists who are increasingly supporting the notion of equal protection which would allow fetuses to be treated the same as people in cases of homicide, wrongful death and child endangerment.
[00:06:47] In Alabama there were two bills that were proposed which would allow prosecutors to charge abortion patients with murder.
[00:06:55] These bills are House Bill 518 which was introduced in April of 2025, and House Bill 454 which was introduced in 2023.
[00:07:08] These bills would allow women to be charged with murder if she miscarries and they believe she miscarries because of, quote, reckless or negligent behavior.
[00:07:20] House Bill 518 also defines personhood as the moment of fertilization, which could open the door for prosecutors to charge women who use IUDs and emergency contraception.
[00:07:34] Conservatives believe that these types of birth control prevent implantation, so they believe it should also be considered an abortion and that you could go to jail for using it.
[00:07:47] Within this bill in Alabama, they do have restrictions that states a woman shouldn't be charged with murder if she loses her pregnancy after being violently raped or beaten during a domestic abuse incident. However, if the woman, quote, put herself in this situation, she would now be considered completely complicit House Bill 454, or the Human Life Protection act of Alabama, is a bill that states mothers who have had an abortion will not be criminally charged. However, it was leaked that a representative from the Alabama Attorney General's office told a reporter that a woman will be held accountable, but the state is planning to use a different law other than the abortion ban to do it.
[00:08:40] Alabama's chemical endangerment law was written to punish adults who expose children to an environment in which controlled substances are produced or distributed.
[00:08:53] According to Jessica Valenti's book Abortion, what this law means is that parents who bring their children to a drug dealer's home would be held accountable.
[00:09:03] It was hinted that the Attorney General planned to use this loophole to punish women who have taken abortion medication with the chemical endangerment of their fetus.
[00:09:15] Abortion medication is the most common way for women to access care, with as many as 63% of abortions occurring this way.
[00:09:26] When Jessica Valenti's article about Alabama's purpose for using the chemical endangerment law as a way to punish women for using abortion medication, the Attorney General had to publicly reverse course.
[00:09:40] He claimed he would not use this law to arrest women utilizing abortion medication in his state.
[00:09:47] Prosecutors will target those they believe the general public will not care about, for example, pregnant women accused of using drugs by letting Americans think think that those being arrested deserve it. They will not take to the streets about it.
[00:10:05] Despite advocacy from groups like the foundation to Abolish Abortion, legislative leaders did not bring the bills to a vote. House Bill 454 never received a hearing in the Judiciary committee during the 2023 session, and House Bill 518 remained pending in the House Health Committee as of April 2025.
[00:10:30] Although no state law explicitly labels abortion as murder, some prosecutors have used existing laws like child endangerment, fetal homicide, or chemical endangerment to arrest or investigate women for pregnancy outcomes such as self managed abortion or substance abuse.
[00:10:54] Another strategy that prosecutors have used is pursuing charges that are seemingly unrelated to miscarriage or abortion, such as abuse of a corpse, unlawful practice of abortion, medicine, child abuse or endangerment, and even homicide.
[00:11:13] By targeting women in these ways, it allows them to get around the state's prohibitions on arresting women for abortion.
[00:11:23] One has to ask the question, who is reporting these incidents?
[00:11:28] Typically, it is often health care providers who report women in cases like these 45% of the time it was a healthcare provider that reported the case.
[00:11:40] Healthcare providers have a close relationship with law enforcement, breaking the trust of their patient by disclosing the incident starts the process of prosecution.
[00:11:51] Women of color are disproportionately targeted in cases like this.
[00:11:56] 26% of people have had their acquaintance report them to law enforcement as well.
[00:12:03] Texas passed bounty hunter laws for those willing to snitch and sue anyone who violates a abortion bans with a reward of $10,000.
[00:12:14] Other states are starting to follow suit.
[00:12:17] Unfortunately, this reward was probably not necessary as there are plenty of people who like to tattle on those around them. Regardless, conservatives are hoping that America's need for punishment and accountability will prioritize adherence to the state over the safety and health of our neighbors.
[00:12:40] Conservatives are not just focusing their attention on punishing women who have abortions, they are also targeting those who support abortion patients.
[00:12:51] Prosecuting those who help women obtain abortion care is another tactic they are trying to criminalize with abortion.
[00:12:59] There are bills designed to ban pro choice websites, laws about anti trafficking that criminalize aiding someone receiving out of state care.
[00:13:10] We have seen a great deal of people step up since Roe was overturned.
[00:13:16] People have funded abortions by raising money helping to coordinate travel for those who need to obtain their care out of state.
[00:13:24] We have seen doctors taking risks by prescribing and shipping abortion medications across state lines.
[00:13:31] People have flown women to states for help, providing escorts to get women safely inside abortion care facilities and so many others.
[00:13:41] With all of these helpers stepping up and speaking out, anti abortion legislators and groups are determined to punish whoever they can.
[00:13:52] Legislators are proposing that people who help by shipping abortion medication should be characterized as drug traffickers or those who help women travel to different states would be considered human traffickers. They are defining trafficking as broadly as possible.
[00:14:13] Laws in Idaho, Tennessee and Oklahoma claim to protect minors from predatory adults who bring their teen victims across states state lines for abortion to hide evidence of rape. However, the law labels and prosecutes anyone who helps a young person get an abortion as a trafficker.
[00:14:34] Tennessee passed legislation called abortion trafficking that makes it a felony if a minor is taken out of state for abortion care without parental permission.
[00:14:45] If charged with this misdemeanor, one could spend nearly a year in jail.
[00:14:50] The law targets any adult other than the parent or guardian who intentionally harbors or transits a minor for an abortion or for obtaining abortion inducing drugs.
[00:15:04] In the state of Texas, abortion trafficking bans currently exist as a patchwork of local county ordinances and specific state laws targeting the transport of minors or abortion medication.
[00:15:19] At least six Texas counties and several cities have passed abortion trafficking ordinances.
[00:15:26] These laws make it illegal to use local roads to transport a pregnant person for an out of state abortion.
[00:15:35] Currently, these ordinances are enforced through private civil lawsuits which allows any citizen to sue a person that you suspect of assisting with transport.
[00:15:46] The pregnant person cannot be sued or prosecuted. The target is the driver or the person providing financial support.
[00:15:56] Also, private citizens can sue anyone who manufactures, distributes, mails or transports abortion inducing drugs to or from Texas.
[00:16:08] In 2025, Texas passed legislation that classifies transporting or funding an unemancipated minor's travel out of state for an abortion without parental consent as a second degree felony which can carry a prison sentence of two to 20 years.
[00:16:30] Not only are they looking to punish individuals who help women needing abortion care, but anti abortionists are also looking to attack abortion funds and pro choice groups. After all, these groups are the ones providing the money to help them travel. They are providing resources and information for out of state clinics.
[00:16:53] According to the Attorney General of Alabama, Steve Marshall, he believes that under his interpretation of the law, ste telling a woman about a clinic where she could receive care would be a crime.
[00:17:06] Marshall argued that groups who help women leave the state for abortion care are participating in a, quote, criminal conspiracy.
[00:17:16] According to Jessica Valenti's book Abortion in 2023, Texas Republicans introduced legislation to make pro choice websites a illegal, specifically naming organizations that ship abortion medication.
[00:17:33] The legislation would also have allowed the state to charge abortion funds using the RICO Act, a federal law meant to target organized crime rings.
[00:17:44] While a total ban on such websites has not become law, other legislative efforts have been made.
[00:17:53] Republicans are even going as far as punishing district attorneys who decline to prosecute abortion cases.
[00:18:01] They have passed laws that would allow them to remove any district attorney who is not following their playbook and punishing women.
[00:18:10] This means that the legislators are voiding what the people want to ensure that only district attorneys willing to prosecute abortion cross crimes hold office.
[00:18:20] Multiple bills have been pushed in Texas for these district attorneys to be removed more easily.
[00:18:27] This could also branch to judges that the state believes are too liberal. If these key players in the law do not follow the conservative playbook, they will systematically remove them.
[00:18:41] Through all of these burdens of proof. Anti abortion group groups want to keep distance between their affiliation and efforts to put women in jail because they know putting patients in jail will not go over well with voters.
[00:18:56] What all of this means is that conservatives know we are trying to help.
[00:19:01] They want to stop us from helping our neighbors and making sure that all women have reproductive rights.
[00:19:09] If we continue to support one another, we can stop their campaign of turning us against each other.
[00:19:15] Calling out misinformation in the media and holding these media outlets accountable is a way we can continue the narrative of providing for women who need reproductive care.
[00:19:27] We need to make sure that the stories of abortion cases are accurate, especially when local and national news outlets cover them.
[00:19:36] Paying attention to how your local newspaper or media outlet reports stories of someone being criminalized and checking for telltale signs of racism, misogyny, and abortion stigma is important.
[00:19:50] If you see these signs, speak out the right to bodily autonomy for women is extremely important because when a woman lacks the power to make decisions about her health or her reproduction, her ability to pursue education, maintain a career, and participate in public life is severely diminished.
[00:20:13] Bodily autonomy is directly linked to financial stability.
[00:20:17] Pregnancy and childbirth carry significant physical and health risks.
[00:20:22] Forcing someone to undergo these risks is a violation of their human rights.
[00:20:30] A father cannot be legally compelled to donate blood, a kidney, or even bone marrow to save the life of his dying child.
[00:20:38] This remains true even if the father is the only compatible donor and the procedure is low risk.
[00:20:45] The law respects his absolute right to refuse the use of his organs. However, in states with abortion bans, the law will come compel a woman to use her entire physical system, her heart, lungs, nutrients, and blood to sustain a fetus for nine months.
[00:21:04] This expectation would never be asked of a man.
[00:21:08] This perceived unfairness stems from the fact that while the law treats a man's body as private property that the state cannot touch even to save a life, in many states a woman's body is treated as a public resource that can be regulated to preserve a potential life even at the cost of her own Choosing to have an abortion is rarely a simple flick of a switch decision.
[00:21:39] For many, it is a complex navigation of personal values, logistical hurdles, and societal pressure.
[00:21:48] Arguments against punishing women for having an abortion are rooted in legal history, human rights, and public health data.
[00:21:57] If men could get pregnant, abortion would likely be viewed as a fundamental constitutional right rather than a moral issue.
[00:22:07] In our next episode, we will focus on the right to birth control and who wants to take these rights away.
