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The race to decriminalize self-induced abortion before Trump gets a new Supreme Court justice

Advocates want to change laws now, so that the coat hanger isn't replaced with a jail cell for people who self-manage their abortion.

Credit: Douglas Sacha
Credit: Douglas Sacha

As a more conservative Supreme Court nears, the public is reckoning with the further erosion of reproductive care access and as such the inevitable rise of self-induced abortion.

While a wire coat hanger is likely the first image that comes to mind, a modern day self-abortion is more like medication by way of mail administered at home, privately and safely. When taken together, mifepristone (or  RU-486) and misoprostol (or Cytotec) are 98 percent effective in ending a pregnancy up to 11 weeks. Misoprostol is 85 percent effective when used alone. And both drugs are verified by the World Health Organization.

Self-managed abortion can be safe and is preferred by many people. Still, it’s very stigmatized. It’s effectively illegal to self-manage abortion in half the country, including many liberal strongholds.

Now, with Roe v. Wade at risk, activists are working to overturn those laws.

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“It’s really up to us to change those laws now so that we don’t end up replacing the coat hanger with a jail cell for women who self manage their abortion whether now or in the future,” Andrea Miller, President of the National Institute for Reproductive Health (NIRH), recently told reporters in a press call.

Earlier this week, the Massachusetts legislature passed a bill eliminating a 19th-century law criminalizing abortion, including self-induced ones. Once Gov. Charlie Baker (R) signs the legislation into law, abortion will be legal in Massachusetts no matter what happens at the federal level. Activists had been pressuring lawmakers to do this for years, but they weren’t compelled until it became possible for Roe to be overturned.

“What we have done here is to make sure Massachusetts is prepared in case,” said state Rep. Byron Rushing (D) on the House floor just before the vote Wednesday.

On Wednesday, lawmakers specifically overturned a ban that was intended to criminalize clinicians “procuring a miscarriage” but instead was used against pregnant people. In 2007, 18-year-old Amber Abreu was charged for “procuring a miscarriage” and reprimanded by a judge to get mental health treatment.

There are similar efforts to eliminate laws that effectively criminalize self-managed abortion in other parts of the country. Legislatures in Rhode Island and West Virginia both introduced bills to effectively decriminalize self-managed abortion last year, Miller told ThinkProgress.

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New York bans self-induced abortions outright, and advocates have been trying to get it overturned for years. It’s a decades-old law, but was first believed to been used in 1984 to prosecute a woman for self-managing her abortion. And it’s been applied six times since 2000, said Miller.

The Assembly passed a bill in March, titled the Reproductive Health Act, that eliminates this ban and goes as far as to codify Roe should it be overturned. But the state Senate blocked the bill from going to a floor vote before the legislative session ended in June. Now, local activists and state Democrats have been calling on Republican leadership to hold a special session to vote on RHA. ThinkProgress has repeatedly reached out to Republican leadership who hold a narrow majority in the state Senate, but did not hear back.

Pro-choice activists holds a coat hanger, historically used for self-induced abortion, that reads "never again" in front of the US Supreme Court in Washington, DC, January 22, 2015, during the March For Life rally. (CREDIT: JIM WATSON/AFP/Getty Images)
Pro-choice activists holds a coat hanger, historically used for self-induced abortion, that reads "never again" in front of the US Supreme Court in Washington, DC, January 22, 2015, during the March For Life rally. (CREDIT: JIM WATSON/AFP/Getty Images)

While it’s not common, arrests do happen; there are 20 known arrests and criminal investigations in 20 states for self-induced abortion since 1973. Jennie Linn McCormack, a mother of three, was arrested in 2011 for ending her pregnancy with an abortion pill she purchased online. McCormack was charged under a 1973 state law, Idaho Code 18-606, which makes self-managed abortion a felony punishable up to five years in prison. Her charges were eventually dismissed.

Self-induced abortion is categorically banned in seven states, including New York and Idaho, all passed into law before Roe specified constitutional limits to restrictive abortion laws. Like Massachusetts’ soon deceased law, there are also a handful of state laws that can be used to criminalize people who self-abort. States laws with fetal protections or confusingly worded, archaic abortion restrictions have been misapplied to arrest or investigate abortion seekers who self-manage. Some of these laws aren’t enforceable due to court wins.

“Threats of arrest looms most heavily on immigrants, people of color, and those who are low-income.”

“Even in states where self-managed abortion is not explicitly a crime, overzealous prosecutors have stretched other criminal statutes to punish women for their behavior during pregnancy, including some women who have acted to end their own pregnancies,” according to a NIRH report.

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The first law restricting abortion came from Connecticut in 1821, but it wasn’t illegal for a person to cause their own miscarriage until 1860. This sea change was presumably in response to an American Medical Association resolution adopted in 1859, asking states to revise abortion laws for the well-being of the pregnant person. But now, with medical advancements, self-managed abortion is safe and possible for anyone who wants it, making the laws that criminalize it moot. Criminalization does make it harder to get the right medication, forcing some people to purchase the pill on sketchy websites. 

“More people will have self-induced abortions, irrespective of what happens in the Supreme Court,” said Jill Adams, founder and chief strategist of the SIA Legal Team. “Threats of arrest looms most heavily on immigrants, people of color, and those who are low-income — [who also face] the highest obstacles to clinic-based abortion care.”

Abigail Aiken, with the University of Texas at Austin, conducted interviews with 32 people from 20 states who sought abortion pills online, and found that people attempt to self-manage now for a variety of reasons. For people living in states like Texas and Louisiana, with more restrictive abortion laws, financial and logistical barriers compounded with anti-abortion activists surrounding clinics compelled them to think about self-managed abortion. For people living in states with more supported abortion laws, like California and New York, they were triggered by misinformation from crisis pregnancy centers and the inability to get child care or time-off from work.

For reasons listed and not, Adam said “we need to get laws of the books, clarify criminal codes, and moreover we need to reshape thinking about self determined reproductive health care.”

Correction: This post initially wrote legislation was introduced in Virginia to effectively decriminalize self-manage abortion, when it was West Virginia. This post was also updated to clarify that Gov. Charlie Baker had not signed the Massachusetts bill into law yet and to rename the self-managed abortion chart.