Surveillance, Suspicion, Criminalization: The Dangers of Post-Roe America

Since the decision in Dobbs v. Jackson Women’s Health Organization effectively repealed Roe v. Wade in June, numerous state governments have made moves to criminalize abortion, with eight states completely outlawing abortion and nearly two dozen more further restricting pregnancy terminations in most cases. Reproductive health advocates recently witnessed a victory in Kansas, where voters rejected repealing abortion protections from the state constitution. However, just a few days later, Indiana passed new legislation banning abortion, becoming the first state to pass a post-Dobbs ban with narrow exemptions. 

Indiana’s new legislation terminates all licensures for clinics and non-ambulatory facilities that provide pregnancy terminations. Doctors face felony charges, but pregnant patients are exempt from criminal charges. This is in line with what pro-life advocates argue: Laws restricting abortion should only criminalize health care providers, not patients. But can such measures against abortion truly protect pregnant people in this current climate, where health care providers, friends and family members, and even community members at large are beginning to view American women and female-bodied persons of reproductive age as criminals?

In April, South Texas prosecutors charged 26-year-old Lizelle Herrera with murder for an alleged self-managed abortion. Much of Ms. Herrera’s case still remains unknown to the public, but her legal defenders pieced together that she sought treatment at a Rio Grande Valley hospital in early January and a hospital worker alerted authorities about Ms. Herrera’s pregnancy outcome. The indictment from the Starr County Sheriff’s Office was vague: Ms. Herrera allegedly “intentionally and knowingly” caused the death of an unidentified victim by a “self-induced abortion.” Frontera Fund, a Rio Grande Valley-based group that provides monetary and practical support to those seeking abortion, posted Ms. Herrera’s $500,000 bail, and local protests helped convince prosecutors to drop all charges just days after the arrest.

At the time of Ms. Herrera’s arrest, Texas’ controversial law SB-8 granted ordinary citizens the power to sue those they believe to have aided in the termination of a pregnancy, including the pregnant patient. (Oklahoma and Idaho have since enacted their own bounty-hunter-style legislation.) Then, just a week after the Supreme Court overturned Roe v. Wade, the Texas Supreme Court ruled that the state can enact a 1925 total abortion ban with a similar provision: Private lawsuits can be brought against physicians who perform abortion, as well as anyone who assists in “procuring” the procedure. 

These two Texas laws technically don’t permit criminal enforcement. However, a culture of suspicion and surveillance, coupled with intense stigma toward those who either provide or undergo an abortion, means that Ms. Herrera’s case may not be an outlier. According to Dana Sussman, acting executive director of National Advocates for Pregnant Women, people have been facing criminal charges for their pregnancy outcomes—whether miscarriage, stillbirth, or abortion— at an “accelerated pace” over the last 20 years. 

“The increase in abortion restrictions running parallel to the normalization of fetal personhood through laws, judicial decisions and cultural shifts have created an environment in which pregnant people face far more criminalization than they did before Roe,” Ms. Sussman told me in an interview.

A 2013 N.A.P.W. study identified 413 incidences of pregnancy-related criminalization and state interventions between 1973 and 2005. According to Ms. Sussman, the organization’s next dataset, for years 2006 to 2020, identifies more than 1,300 cases—more than triple the number in just a fraction of time. 

Even the most well-meaning laws safeguarding rights for the unborn can end up being wielded against pregnant people. A 2021 report from the National Association of Criminal Defense Lawyers argued that nearly 4,500 federal criminal codes, as well as tens of thousands of state criminal provisions, place people seeking abortion at risk for criminal penalties. The N.A.C.D.L. attributes much of this criminalization to the focus on codifying fetal personhood. 

Fetal personhood creates “an entire new class of crime victims” in which pregnant people are turned into perpetrators, Ms. Sussman said. 

In some cases, people are accused of using illicit or controlled substances or taking physical actions against their bodies, such as falling down a flight of stairs. In other cases, Ms. Sussman said, there are no such specific allegations, “but because of who [the patients] are—because they’re a woman of color, they’re young, they’re poor, they shared ambivalence with a medical provider earlier on in their pregnancy—they’re suspected of self-managing an abortion.”

Ironically, “when a pregnant woman could face criminal charges for seeking health care, for going to the hospital, for being honest with her health care provider during a medical emergency—that harms the fetus,” she added.

Ms. Sussman describes a recent case that N.A.P.W. represented, in which an estranged family member reported a Virginia woman after a stillbirth occurred at home, alleging that the woman actually self-managed an abortion late in pregnancy. The woman was charged with “producing an abortion or miscarriage,” a felony under the state’s provision on fetal-remains disposal. 

This was hardly the first time Virginia’s fetal-remains disposal law was used to charge a person with an alleged self-managed abortion: In 2016, 25-year-old Katherine Dellis was sentenced to five months in jail for disposing of a stillbirth in several trash bags, which her father placed inside a public dumpster. She went to a local hospital for an exam, and health care workers soon alerted authorities.

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Since the overturning of Roe v. Wade in June, Catholics have cried that the pro-life movement shouldn’t endorse legislation that criminalizes patients. While this sentiment is commendable in its earnestness, it’s hardly based in reality. 

The criminalization of pregnant people has long been entwined with America’s mass incarceration complex. The N.A.C.D.L. report blames the nation’s “addiction to criminalization” for the increase in penalties against pregnant people, noting that the majority of people victimized under such laws, especially feticide or fetal homicide laws, have been Black people, low-income people, and substance users. To be sure, the movement to criminalize abortion through legal and judicial measures can’t be disavowed from this racist, classist, and ableist history.

Furthermore, the present-day climate of suspicion and subjugation against any person who is pregnant–or even any female-bodied person of reproductive age–extends from late 19th and early 20th century movements that targeted abortion providers (who were mainly female midwives and doulas) and pregnant people.

In her groundbreaking book When Abortion Was a Crime, historian Leslie J. Reagan argues that even if law enforcement agents weren’t trying to shame or harm abortion patients, the enforcement of abortion laws was often “punitive” in nature. In the early 20th century, when abortion was criminalized yet widely practiced underground, midwives and physicians were the ones likely to receive fines and imprisonment. Meanwhile, people who underwent abortion commonly faced “humiliating interrogations about sexual matters,” often on their death beds. Their names and experiences were also frequently publicized in their communities, attaching a scarlet “A” of sorts to them.

This singular focus on fetal personhood ultimately ends up pitting pregnant people against their fetuses, which only compounds the trauma for people experiencing pregnancy loss. Legislating protections for the embryo or fetus, without any regard for the bodily autonomy of the pregnant person, reaps some dangerous legal, financial, and emotional consequences. Once a person is charged with a felony related to pregnancy loss, they face astounding collateral consequences: Aside from prison time, they may be separated from their children, lose custody and visitation rights, and be placed on a child abuse registry that will impact their chances of future employment.

“The ripple effects of that harm are significant to her and to her family,” Ms. Sussman said.

I acknowledge that many Catholics may find it easier to sympathize with people who’ve endured miscarriages or stillbirths rather than self-managed abortion. However, it’s important to note that miscarriages and self-managed abortions (or abortions done via medication) present the same medically—it is almost impossible for a doctor to distinguish one from the other. And medication abortion has become the preferred method for abortion in the United States, accounting for 54 percent of pregnancy terminations in 2020, according to the Guttmacher Institute.

These are the realities we’re facing in this post-Roe world: We haven’t been ushered into an era free from abortion, but an era of increasing, unrestrained suspicion, surveillance, and criminalization of pregnant people. How far will we, as Catholics, allow the pro-life movement to continue down this road?