Crime Overturning Roe v Wade Could Lead to More Women Being Jailed for Miscarriages
Conflict over abortion laws won't abate if Roe v. Wade falls
On both sides of America’s abortion debate, activists are convinced that Roe v. Wade — the 1973 Supreme Court ruling establishing a nationwide right to abortion — is imperiled as never before. Yet no matter how the current conservative-dominated court handles pending high-profile abortion cases — perhaps weakening Roe, perhaps gutting it completely — there will be no monolithic, nationwide change. Fractious state-by-state battles over abortion access will continue. Roe's demise would likely prompt at least 20 Republican-governed states to impose sweeping bans; perhaps 15 Democratic-governed states would reaffirm support for abortion access.
Last month, a 21-year-old Oklahoma woman was jailed after she had a miscarriage at about 17 weeks.
When she arrived at the hospital seeking treatment, Brittney Poolaw admitted to using drugs. But an expert witness for the prosecution testified during Poolaw's one-day trial that her methamphetamine use may not have directly caused the miscarriage. Still, a jury found her guilty of manslaughter and sentenced her to four years in prison.
, but experts warn that her case offers a preview of a draconian future where such prosecutions could become all too common if Roe v. Wade, the landmark 1973 ruling that established a woman's right to terminate a pregnancy nationwide, is overturned.
Roe redux: Is 'viability' still viable as a constitutional doctrine?
The Supreme Court is on the eve of arguments in what could be the most consequential abortion case in decades.Dobbs has everything that you would need for a Roe-killing case. That does not mean the court will do so, but it could substantially reduce Roe's hold over states.
Thewill on December 1 hear arguments in Dobbs v. Jackson Women's Health Organization, a case dealing with the constitutionality of a 2018 Mississippi law that banned abortion after 15 weeks.
Twenty-six states are certain or likely to outlaw abortion if the conservative-dominated court's ruling in that case strikes down Roe, according to Guttmacher Institute, a pro-choice research organization.
Lynn Paltrow, the founder and executive director of National Advocates for Pregnant Women (NAPW), said that women have been arrested for allegedly harming their fetuses for decades. "There were arrests before Roe, not that many, but there absolutely were some," she told Newsweek.
She cited a 2013 peer-reviewed study by NAPW that documented 413 cases of women who were arrested or deprived of their liberty between 1973 and 2005. But the pace has picked up in the years since, she said, with more than 1,200 such cases identified between 2005 through 2020.
'Roe' on the line as Supreme Court takes up abortion rights case
The Supreme Court will hear a case from Mississippi that could transform abortion rights in America, overturning Roe v. Wade and allowing stringent new state laws. "This is the most important Supreme Court case on abortion since Roe in 1973, and I don't think it's particularly close," said Sherif Girgis, Notre Dame law professor and former clerk to Justice Samuel Alito.
Criminal feticide laws were initially adopted, Paltrow said, as "a response to violence against pregnant women and wanting to be able to penalize the attacker for the loss of both lives." But prosecutors "have used those laws and tried to twist them into tools for arresting the pregnant woman herself," she added, pointing to the case of Adora Perez, who is serving an 11-year sentence for manslaughter after giving birth to a stillborn baby following methamphetamine use.
If Roe is overturned, Paltrow said it would be "a giant green light for prosecutors who are intent on finding ways to police and penalize the people who get pregnant."
A recent report from the National Association of Criminal Defense Lawyers (NACDL) sounded the alarm, warning that a wave of expansive prosecutions will likely follow any significant curtailment or reversal Roe.
"A close analysis of existing and emerging state law belies the common perception that enforcement will be limited to abortion providers and irrefutably shows that erosion of a precedent that has stood for nearly half a century may well open the floodgates to massive overcriminalization," Norman Reimer, the NACDL's executive director, wrote in the report's preface.
Pence cheers potential overturning of Roe v. Wade
On the eve of what could be the most consequential challenge to abortion access on a federal level, Mike Pence called for SCOTUS to totally annihilate Roe v. Wade. "As we stand here today, we may well be on the verge of an era when the Supreme Court sends Roe v. Wade to the ash heap of history where it belongs," Pence said at a National Press Club gathering hosted by anti-abortion group the Susan B. Anthony List.
According to the report, there are more than 4,450 crimes in the federal criminal code and tens of thousands of state criminal provisions already on the books that could subject a wide range of individuals to criminal penalties if Roe is overturned.
Arkansas, Kentucky, Mississippi and South Carolina have already redefined "personhood" in existing laws to include an unborn child.
Others are primed to follow suit should Roe be overturned, paving the way for more states to target women who lose a fetus with charges ranging from child endangerment to murder.
State laws that redefine "personhood" to include an unborn child are being used to "dramatically alter the scope of criminal liability," Lindsay Lewis, one of the report's co-authors, told Newsweek.
"These seemingly minor definitional changes have expanded the reach of criminal liability for serious offences, such as homicide, feticide, aggravated assault and manslaughter," she added.
This has fuelled the arrests of women for pregnant outcomes, whether as a result of a self-induced abortion, miscarriage or stillbirth allegedly caused by actions including alcohol and drug use, or a physical altercation.
Abortion rights: Here are the two cases the Supreme Court could overturn
When the Supreme Court hears a constitutional challenge on Wednesday to a Mississippi ban on abortion after 15 weeks of pregnancy, the justices will start with the two seminal decisions that secured the abortion right for women. © Andrew Harnik/AP Barriers to separate activists are set up outside the Supreme Court building in Washington on Tuesday, November 30, 2021, ahead of arguments on abortion law at the court Wednesday. The decisions, in 1973 and 1992, laid down constitutional markers while describing in powerful terms the difficult issues at hand. In Roe v.
"Although the majority of state statutes make explicit that their laws don't create criminal liability for women who receive abortions, proposed anti-abortion legislation that's not yet on the books and waiting in the wings, and existing criminal statutes in states across the country, do in fact, and will in fact, subject women to criminal prosecution and incarceration for their pregnancy outcomes."
Missy Owen, one of the report's co-authors, said defining personhood prior to the point of fetal viability will put more women in danger of prosecutions for suffering natural miscarriages in a post-Roe world.
"It's just going to be a natural consequence that miscarriages happen before viability," Owen told Newsweek. "If a fetus is considered a human being, the laws that are already on the books are going to enable prosecutors to make these prosecutions without additional legislation. When we're dealing with miscarriages, these now could be called homicide."
Lewis added: "We are, as a society, have been trending toward mass incarceration on an unprecedented scale," she said. "What will happen if Roe is overturned will only exacerbate that."
What Roe Could Take Down With It .
The logic being used against Roe could weaken the legal foundations of many rights Americans value deeply.Many of the dangers of overruling Roe have been long discussed. If women lose the right to an abortion, pregnancy-related deaths are estimated to rise substantially and suddenly. (Currently, 26 states have so-called trigger laws on the books that would outlaw most abortions the moment the Court reverses Roe.) The impact of Roe’s fall would hit low-income women especially hard, as they’re five times as likely as affluent women to experience unplanned childbearing and twice as likely to face sexual violence.