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Prosecutorial Discretion for Self-Managed Abortion Helpers

Published online by Cambridge University Press:  13 December 2023

Patty Skuster
Patty Skuster*
Affiliation:
TEMPLE UNIVERSITY, PHILADELPHIA, PA, USA.
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Abstract

Elected prosecutors have pledged not to enforce abortion laws, in response to state-level abortion bans. For their pledges to be meaningful, prosecutors must exercise their discretion in cases of individuals who face legal risk, including people who help others self-manage their abortions. With a harm-reduction approach to improving abortion access, prosecutors should aim to reduce abortion helpers’ involvement with the criminal justice system.

Keywords

Self-managed AbortionAbortion PillsAbortionAbortion LawProsecutorial Discretion
Type
Symposium Articles
Information
Journal of Law, Medicine & Ethics , Volume 51 , Issue 3: Seeking Reproductive Justice in the Next 50 Years , Fall 2023 , pp. 565 - 569
Copyright
© 2023 The Author(s)

Introduction

Dobbs v. Jackson Women’s Health Organization ushered in a new era of political forment over abortion, laying a foundation for conflict over control of abortion regulation. Elected prosecutors at state and local levels entered the fray — nearly 100 elected prosecutors vowed to exercise their discretion and refrain from prosecuting people who “seek, provide, or support abortions.” 1

Meanwhile, pregnant people continue to seek abortion care regardless of the legal environment. In the United States, in the decades leading up to Roe v. Wade people continued to end their pregnancies, despite abortion prohibition under state law.Reference Reagan 2 Worldwide, around half of unintended pregnancies end in abortion, regardless of legality.Reference Bearak 3

As legal restrictions on abortion expand, a growing number of pregnant people in the United States will self-manage their abortions — that is, end their pregnancies without clinical supervision.Reference Moseson 4 Researchers have found that demand for self-managed abortion is higher in states where the abortion law is more restrictive.Reference Aiken 5 As the number of states banning abortion grows so will the proportion of people who self-manage their abortions, with the help of laypeople.

This essay considers prosecutors’ pledges not to prosecute abortion in the context of helping others self-manage their abortions. Self-managed abortion typically does not involve a medical professional; the term generally refers to the act of having an abortion without clinical supervision and outside a formal healthcare setting. 6 Researchers and scholars have well established the injustice of arrest and prosecution of people based on their decisions during pregnancy, including people who self-managed their abortions. Unexplored is the legal risk and the potential of laypeople who help.

Self-Managed Abortion after Dobbs

Medical doctors have served as gatekeepers to abortion care, and criminalization of abortion can be traced, in part, to the influence of the medical profession.Reference Starr 7 Before the advent of specialized equipment for abortion, people ended their pregnancies without the help of professional healthcare providers through a range of methods. Abortion helpers of the time were often knowledgeable midwives or women in their families and communities.Reference Riddle 8 Early in the 20th Century, physicians, under the ambit of the newly-organized American Medical Association, campaigned for criminalization of abortion early in pregnancy. 9 Despite prohibitions on abortion, doctors continued to provide “therapeutic abortions” in hospitals but nearly exclusively to white women with means to pay. 10 Despite the clinical safety of early medication abortion without a healthcare professional, the medical model of abortion remains. In states where abortion is legal, abortion laws generally require the involvement of a healthcare professional, most commonly a physician. 11

As people who would have sought formal care from a clinic turn to self-managed abortion, prosecutors are unprepared to exercise judgment in determining who should not be prosecuted for helping with abortion. Prosecutors’ decisions will be colored by structural and individual racism throughout the criminal justice system.

Self-managed abortion with medicines was first discovered nearly 40 years ago in Brazil, when women in Brazil discovered they could take the ulcer drug misoprostol to induce a miscarriage.Reference Löwy and Corrêa 12 Around the same time, mifepristone was developed by a French pharmaceutical company for the purpose of inducing abortion when used with misoprostol.Reference Ulmann 13 Mifepristone with misoprostol remains the dominant standard of practice for medication abortion.Reference Ehrenreich, Biggs and Grossman 14

Research has established high levels of clinical safety and efficacy of early self-managed abortion with medication, across varied settings around the world.Reference Moseson 15 The World Health Organization recognizes people can safely self-manage abortion, in whole or in part, and self-managed abortion before 12 weeks is part of a comprehensive range of safe, effective options, (with access to accurate information, quality-assured medicines, the support of trained health workers, and access to healthcare services if needed or desired). 16 Though many self-managed medication abortions do not meet this standard, the need to reduce legal risk associated with self-managed abortions remains.

The use of self-managed medication abortion has risen as clinics closed following the Dobbs decision.Reference Rader 17 A study by Aiken et al. found that requests for self-managed abortion through the online telemedicine provider AID Access increased following Dobbs, with the largest increases observed in states that implemented abortion bans.Reference Aiken 18 But the true incidence of out-of-clinic abortion is unknown, as legal and privacy concerns keep many abortions beyond the reach of researchers.Reference Kristianingrum 19 Still, at least one journalist has documented “covert networks” that are providing abortion information and pills for abortions for Americans.Reference Kitchener 20 As noted by Jill Adams of If/When/How: Lawyering for Reproductive Justice, such abortion helpers may be particularly vulnerable to legal risk. 21

Abortion Legal Risk after Dobbs

Laypeople who help individuals get abortion information and drugs are more likely to take on legal risk than risk-adverse institutions, abortion clinic staff and medical doctors. The consequences of providing abortion in some states are greater for medical professionals than laypeople, as abortion bans may pose specific terms of imprisonment upon doctors as well as delicensure for those who violate criminal abortion laws. 22 In hostile states, abortion providers are known to authorities and may be targeted for enforcement. 23 Clinics stopped providing abortion rather than expose themselves to legal risk. In the 100 days following Dobbs, the Guttmacher Institute reported that at least 66 clinics across 15 states stopped offering abortion care. 24

While abortion bans widen the net of criminalized behaviors, they are not necessarily the statutory basis for criminalization of self-managed abortion. Even before Dobbs, people who self-managed their abortions and individuals who provided guidance or abortion drugs were subject to arrest and prosecution.Reference Huss, Diaz-Tello and Self-Care 25

Criminalization associated with self-managed abortion is situated within a broader context of criminalization of pregnant people, including both people who have abortions and those who continue their pregnancies. A clear case has been made that prosecutors should refrain from prosecuting individuals for their decisions related to their pregnancy. Legal scholars and researchers have well established the injustice, harm to health, and discriminatory nature of criminalization of people because of their decisions during pregnancy. 26 Also well-documented is the complicity of healthcare providers who have reported pregnant women to authorities. 27 But less clear is the exercise of prosecutorial discretion for self-managed abortion helpers, including those who are not healthcare professionals.

Criminalization of self-managed abortion is a reproductive justice concern due, in part, to the disproportionate effect of abortion bans. People who are most likely to seek abortion share characteristics with people most likely to face law enforcement surveillance and criminalization. Because of systematic barriers to preventative health services, people who have abortions are disproportionately poor and Black.Reference Jerman, Jones and Onda 28 In the era of illegal abortion in the United States, low-income women and Black and Latina women suffer more of the ill-effects of abortion bans. 29

In all legal contexts, pregnant people self-manage their abortions with the help of laypeople. Self-managed abortion helpers include a range of individuals such as feminist groups, networks and hotlines, doulas, friends, family members, community health workers, websites sharing abortion information, and others.Reference Pizzarossa and Nandagiri 30 Because of proximity to and established trust with abortion seekers, the helpers may also disproportionately represent criminalized communities.

Vows to Exercise Discretion in Response to Abortion Bans

In the months following the Dobbs decision, prosecutors vowed not to enforce new state anti-abortion laws, including nearly 100 who issued a statement announcing their intent to exercise their discretion and refrain from prosecuting people who seek, provide, or support abortion. 31 Others have made individual pledges. 32 With a focus on new abortion bans and a clinical paradigm of abortion care, progressive prosecutors anticipated potential cases of licensed medical professionals who previously provided legal abortion in compliance with state law. Indeed, an earlier abortion-supportive statement by prosecutors in 2019 highlighted the “doctors, nurses, anesthetists, health care providers, office receptionists” 33 who could face criminal liability under then-new abortion statutes. But as noted above these individuals are unlikely to take on legal risk.

The Changing Notion of Safe Abortion

As people who would have sought formal care from a clinic turn to self-managed abortion, prosecutors are unprepared to exercise judgment in determining who should not be prosecuted for helping with abortion. Prosecutors’ decisions will be colored by structural and individual racism throughout the criminal justice system.

In the statement by prosecutors, the elected signers noted that “criminalizing abortion will not end abortion; it will simply end safe abortions.” 34 While criminalization of abortion has not ended abortion, it very likely has increased the number of people who self-manage their abortions. Notions of medication abortion safety have shifted,Reference Ganatra 35 and prosecutors cannot deem in-clinic abortion the only legitimate method of abortion. Nor can all abortions meet the same standards for clinical safety, in this era of abortion bans.

Harm Reduction for Abortion Helpers

Where individuals are unable to get the healthcare they need because of harmful laws, prosecutors should take a harm-reduction approach to exercise of discretion in the case of abortion, to reduce the harm of criminalization associated with abortion — even where abortions may be provided in a way that does not meet clinical standards for safety. Harm reduction refers to programs and practices that seek to reduce the risks and harms associated with an activity without prohibiting the activity itself.Reference Erdman, Jelinska and Yanow 36

Harm reduction models rose to prominence in the 1970s and 1980s as a range of interventions to reduce negative effects of health behaviors — primarily drug use — without seeking to criminalize the behavior.Reference Hawk 37 The most well-known harm reduction interventions seek to reduce health-related harms associated with injecting drugs, such as blood-borne viruses and overdose. The most widely-cited and researched harm reduction program are needle exchange programs,Reference Ritter and Cameron 38 but harm-reduction can refer to other measures that are underpinned by principles such as acceptance, pragmatism, and humanism. 39

Researchers and scholars have explored the application of harm-reduction in the abortion field, but much of the analysis relies on a dichotomy of safe versus unsafe abortion.Reference Stifani 40 This is at odds with self-managed abortion and changing notions of abortion safety, and further does not address the need to reduce harms related to arrest, prosecution, and fear of arrest and prosecution of self-managed abortion helpers. A harm-reduction approach must include acceptance of the fact that people will continue to seek abortion, will need help getting abortion pills, and some of these abortions may not meet clinical standards set by the World Health Organization or American professional organizations.

Taking a harm-reduction approach through exercise of discretion will require prosecutors to navigate the tension between the need to ensure people can get the abortion pills they need with preventing bad actors in search of profit from harming pregnant women. As the market for abortion continues to shift, research will be needed to understand the different actors involved with providing abortion pills, as will conceptual work to aid prosecutors in exercising discretion to reduce harm for communities most at risk.

Conclusion

Prosecutors were eager to demonstrate their opposition to abortion bans when they announced their intent to exercise discretion in cases of abortion. Such promises are merely empty rhetoric if the benefits of discretion are limited to the institutions and health professionals who will not incur legal risk in the new post-Dobbs legal landscape. The exercise of prosecutorial discretion is complicated by structural racism across multiple systems which creates conditions in which the very groups who are more likely to face criminalization also are more likely to need abortion. As an important first step, prosecutors must undertake a conceptual shift from an exclusively clinic-based paradigm of abortion care to include self-managed abortion, with the help of laypeople. With such a shift, prosecutors can support the goals of reduced involvement in the criminal legal system for members of criminalized communities and continued access to abortions for those who need them.

Note

The author has no conflicts of interest to disclose.

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