By Mel Wilson, MBA, LCSW, NASW Senior Policy Adviser
The Arizona Supreme Court recently held that an 1864 law, which made nearly all abortions in that state illegal, was constitutional and could be enforced almost immediately. Because of the national repercussions of the ruling, there have been an outcry over the disregard for the reproductive rights of Arizona women and women throughout America.
At present, at least 16 states in the United States have enacted laws that make performing an abortion a felony at any stage.
Unsurprisingly, the decision to allow a 160-year-old law to remain as the legal standard for abortion in Arizona became national headlines. But to some degree, the headlines overshadowed the fact that the ruling could have consequences– intended or unintended– that go beyond the singular focus on abortions.
This is in reference to language in the law that places an emphasis on criminalization of abortions. This language has a potential for triggering long-term consequences for women seeking abortions and reproductive health services. To be specific, the Arizona abortion law includes language that calls for 2-5 years prison sentences for anyone who performs or helps a woman obtain an abortion in violation of this law.
On Aug. 24, 2024, the U.S. Supreme Court heard arguments in a case over emergency abortion care. Criminalization of abortions is not new. It dates back to the 19th Century. While during that period, it was rare that a woman or abortion providers were actually imprisoned, abortion laws included such sanctions to – in the minds of lawmakers in 1864– to deter abortions. The concern is that today’s anti-abortion factions will view the Arizona Supreme Court’s actions as an “authorization” to make criminalization a standard for abortion prohibition laws across the country. In fact, it has been reported that some anti-abortion leaders – in the aftermath of overturning Roe v. Wade– have suggested that criminal punishment of pregnant women who seek or obtain abortions is logical, morally justifiable, and required to end abortion.
At present, at least 16 states in the United States have enacted laws that make performing an abortion a felony offense at any stage of gestation. With respect to women who either induce their own abortions, and those who assist in completing an abortion, state laws and criminal penalties differ. For example in:
Texas – Anyone who performs, induces, or attempts an abortion where “an unborn child dies as a result of the offense” may be guilty of a first-degree felony — punishable by up to life in prison and up to a $10,000 fine.
Alabama – Anyone who performs an abortion, provides abortion pills or “aids, abets or prescribes for the same,” faces up to 12 months in county jail or hard labor and a fine of up to $1,000.
South Carolina – A woman who terminates their pregnancy – with a pill or by other means– faces up to two years in prison and a fine of up to $1,000.
Impact of Abortion Criminalization
With the proliferation of legislation that bans abortion, we can expect a corresponding surge of arrests and prosecutions of violators. With that in mind, it is understandable that many should be apprehensive. Given the history of life-altering collateral consequences associated with people of color being over-represented in criminal legal system, it is not hyperbole to suggest that Women of color, particularly African American women, will be targeted for arrest and prosecution at higher rates than white women. Data reveals that Black and Indigenous women are more likely to be racially profiled and subjected to abortion over-surveillance – leading to higher rates of arrests related to abortion outcomes. In addition:
- Institutionalizing criminal sanctions for abortions will certainly reduce the number of providers willing to perform the procedure or work in reproductive health clinics. This mass exit of trained providers will lead to basic maternity care being more difficult to obtain for many pregnant women.
- Similarly, criminalization (and prosecution) of abortions will greatly exacerbate the growth of so-called maternity care deserts(counties lacking maternity care resources). At present more than 2 million women of reproductive age live in such counties. It should be noted that soon after the Supreme Court overturned Roe v. Wade, as many as 66 clinics in 15 states ceased providing abortions. Among these, 26 clinics have completely shut down.
- There are hardships associated with fewer women’s reproductive health services –partially due to criminalization. These hardships will fall on the most economically vulnerable Americans.
- Currently non-Latinx Black women nationwide have a maternal mortality rate three times that of white women, which is a clear health disparity issue likely caused by lack of access to reproductive health care. Criminalization will further compromise access to reproductive care for these groups.
- Criminalizing travel to seek an abortion has become a reality in several states. This, too, is an example of an attack on women’s reproductive freedom that is being codified in law. Criminalizing travel is particularly insidious– especially for minors– because it seeks to punish parents, relatives, or friends from helping women in desperate need of the procedure.
The decision by the Arizona Supreme Court is another example of judicial overreach as far as abortion is concerned. The unambiguous truth is that the courts cannot and should not be the arbiters of the availability of women’s reproductive health care – including abortion. Reproductive health care is better managed within a public heath paradigm, not in the judiciary or the criminal legal system.
Every effort needs to be made to overturn the Arizona Supreme Court’s ruling. However, the struggle will not end there. It is essential that advocates, legislators, and the general public recognize that collateral consequences, driven by criminalization of abortions will be deeply harmful and long-lasting.
