Between 1969 and 1973, feminists in Chicago with no formal medical training formed an underground abortion service called Jane that performed nearly 12,000 safe illegal abortions.
Today, as many states increasingly restrict medical professionals’ ability to offer abortion, women are once again finding ways to access safe abortion on their own.
A big difference between the two eras, however, is abortion pills—mifepristone and misoprostol—that can simply, safely and effectively end a pregnancy at home, with or without medical supervision.
Self-managed abortion means doing an abortion yourself by obtaining abortion pills, and taking them without going to a doctor.
Evidence indicates that self-managed abortion is on the rise in the United States.
And like a 21st century version of Jane, feminist organizations—like SASS, Plan C, Aid Access and M+A Hotline—are providing people with information about how to self-manage their abortions.
But while self-managed abortion in early pregnancy is medically very safe, is it legally safe?
“Only a handful of states make it a crime to have a self-induced abortion,” Lynn Paltrow of the National Advocates for Pregnant Women told Ms. “In most states, it’s not a crime to take actions that end one’s own pregnancy.”
Paltrow continued: “That being said, even in the overwhelming majority of states where it is not a crime to self-induce an abortion, there are all sorts of laws that that could in theory be applied to people who obtain medications outside of approved medical settings.”
The states that have explicit criminal prohibitions of self-managed abortions are Arizona, Oklahoma, South Carolina, Delaware and Nevada. New York repealed their criminal prohibition on self-managed abortion in 2019.
And while thirty-eight states have feticide laws that equate pregnancy termination with murder, most explicitly exclude pregnant women from criminal penalties.
But some extreme, politically-motivated prosecutors are stretching the law in order to punish women who end their own pregnancies—either using feticide laws or other generally applicable laws such as child neglect, practicing medicine on oneself, or possession of a dangerous substance.
These cases involve abortion in later pregnancy—such as the Indiana case of Purvi Patel or the Idaho case of Jennie McCormick, whose convictions for feticide and unlawful abortion were later overturned by courts.
In fact, there have been no successful prosecutions of women who self-managed an abortion using pills in early pregnancy, believes Dr. Beverly Winikoff, President of Gynuity Health Project, which advocates for reproductive and maternal health.
“When talking about risk, it’s important to understand the broader context,” says Elisa S. Wells, MPH, co-founder and co-director of the organization Plan C. “For instance, we know of 21 cases where people have faced prosecution for doing their own abortion—but these occurred over a time span of more than 30 years. “
“And, we also know that the number of people who successfully self-managed their abortions during that same time frame is likely very high, in the tens of thousands if not in the hundreds of thousands.
“When you do the math—dividing 21 prosecutions by the tens of thousands of people who have managed their own abortions—you can see that the risk is actually very, very small,” added Wells.
So what is the likelihood that self-managed abortion would be criminalized?
“It depends where you are and what you actually do,” says Dr. Winikoff. “In some places, you might end up in jail, depending on the state law and depending on the appetite of prosecutors to persecute. If you order a drug by mail and take it early, in the first trimester, and nobody finds a fetus somewhere, you are much less likely to get in trouble than if you do it in the second trimester.”
But any district attorney in any state can find a law to use to prosecute someone who self-manages their abortion. One of the earliest prosecutions on record for self-managing abortion with abortion pills occurred in Massachusetts in 2007, and there have been two cases in New York as recently as 2011—but both states have since eliminated their criminal abortion laws.
Vulnerability to criminal prosecution also depends on who you are. Unsurprisingly, prosecutors disproportionately target low-income women using Medicaid, immigrant women and women of color with these kinds of charges.
Based upon the current political climate and increasing restrictions on abortion access, there may be increased attention to self-induced abortion—which may lead to more law enforcement officials and other agencies investigating suspected practices and people, resulting in more arrests, incarcerations and deportations.
“Of course, I don’t want to in any way trivialize the traumatic impact these unjust prosecutions have had on the women who have been charged,” says Plan C’s Elisa Wells. “But, people who are seeking abortion pills are looking for a solution, and I would guess that most would consider the benefit of having access to the pills to far outweigh any very small legal risk they might face.”
There are steps that people who self-manage their own abortions can take to reduce their chance of a legal problem.
In the very rare case that they have to seek medical help, they do not need to say that they used abortion pills. The symptoms of abortion with pills are very similar to a natural miscarriage and there is no test to tell the difference. If they use abortion pills as directed by the World Health Organization (under the tongue or in the cheek), there is no residue that might be observed by medical professionals (vaginal use of the abortion pill may leave an observable residue).
The cases where women have been criminally prosecuted for self-managing their abortions usually involve a situation where the woman tells a doctor or nurse that she used the abortion pill, cases in later pregnancy where there is some sort of physical evidence, and/or when someone who knows the woman reports her.
For people concerned about legal exposure, there is help.
The organization If/When/How, which fights to halt the criminalization of people who self-manage their abortion, offers a legal helpline at 844-868-2812 or ReproLegalHelpline.org. The helpline assists people concerned about being criminalized for ending, or attempting to end, a pregnancy to learn more about their rights, submit questions by phone or through encrypted communication, and get connected with an attorney in their state if needed. If/When/How has also published a detailed guide to state laws related to self-managed abortion.
At the policy level, If/When/How works to halt the criminalization of self-managed abortion by using legislation and litigation to repeal any pre-Roe criminal statutes still on the books, to ensure existing laws are used appropriately by making sure feticide laws can only be used to protect—not punish—pregnant people, and to stop legislatures from creating new ways to punish people who have abortions.
“There is both a moral and a legal right to medications that people need to ensure their health,” says Paltrow. “Health care should not be the subject of criminal laws. Health care is a human right and denying women access to medications that can safely and effectively end a pregnancy in or out of a hospital setting is to deny them their dignity and their right to healthcare.”
This article is for informational purposes only, not to give advice or encourage people to perform an illegal act. The contents are not a substitute for advice from a lawyer.
The coronavirus pandemic and the response by federal, state and local authorities is fast-moving.
During this time, Ms. is keeping a focus on aspects of the crisis—especially as it impacts women and their families—often not reported by mainstream media.
If you found this article helpful, please consider supporting our independent reporting and truth-telling for as little as $5 per month.
You may also like:
