The criminalization of abortion: How the health care system might fuel mass incarceration
In the aftermath of the Supreme Court’s reversal of Roe v. Wade, we are all grappling with the devastating impact of this decision on people’s ability to access reproductive care. But as battles for abortion access are being waged in upcoming legislative sessions and in courtrooms across the country, opponents of reproductive health care will not be satisfied by further restrictions to abortion care. Many lawmakers, prosecutors, and politicians have promised to expand criminal penalties for those who access abortion care and those who help provide it.
Facing criminal penalties for accessing or for providing essential health care seems distinctly inhumane and illogical. But the unfortunate reality is that this criminalization is one alarming cog in a carceral machine that has been inhumane and illogical since its conception. The advent of mass abortion criminalization invites a broader critique of the carceral system as a whole, and pushes us toward a deeper understanding of these intersecting systems of oppression. As we engage in the work of defending recipients, providers, and supporters of abortion care who face criminal charges, we need to take a look at how we got here.
Over the last 15 years, there have been important gains in criminal justice reform. From marijuana legalization, to sentencing reforms, to increased alternatives to incarceration, progress has been made even amid pushback. But much of the progress gained has been for those accused of crimes that are “nonviolent” or not serious” or “low-level.” And even these advances, however modest or incremental, are hard fought in a culture with a deeply entrenched view that the criminal legal system holds the answers to societal ills — as opposed to systems of education, housing, employment, or health care.
This formula is tried and true: making many reforms palatable enough to succeed has entailed deliberate othering of an already maligned population — those convicted of violent crimes or sex offenses, in particular. But reserving reform for only those who we deem deserving comes with a price. Fear mongering around “dangerousness” ensures the carceral system’s success and necessity. If there are always “monstrous people” to be feared, we must have someplace to put and punish them. The categorical exclusion of violent offenders from reforms ensures prisons and jails will remain in business.
We aren’t here to minimize the progress made — but we are here to consider who is left behind, and at what cost. We must simultaneously have concern and redress for victims of violent criminal acts, while acknowledging that the system that purports to serve “justice” is perpetuating individual and systemic violence through policing and imprisonment. We must call attention to the way structural racism, poverty, ableism, and gender violence endanger the safety of entire communities. And these acknowledgements must be made while we continue the work of combatting abortion criminalization.
Those who wish to criminalize people who end their pregnancies or provide abortion care rely on well-worn carceral rhetoric around violence. Fetal personhood provisions, in particular, simplify criminalizing pregnant people for the public imagination by labeling them murderers. A pregnancy ended is suddenly first-degree manslaughter; would-be mothers are cast as killers. And what do we do with murderers? We throw them away.
It’s easy to look at the prosecution of pregnant people and say, “Unlike those who commit violent crimes, these people have done nothing wrong, this shouldn’t be a crime — these people are innocent.” And it’s true: no one should be prosecuted for accessing essential health care. But if we only focus on reforms for those we deem the most innocent, we miss an opportunity to confront the devastating systemic harm perpetuated by the carceral state as a whole.
We’re asking our supporters to hold multiple truths at once.
Criminalizing health care is wrong, and people serving time for “serious” offenses have rights and deserve second chances. We refuse to fight for one of these groups at the cost of the other. We will not uplift “innocence” as a guiding light in this work.
The anti-abortion movement and mass incarceration both purport to keep people (or fetuses) “safe.” In reality, both are deadly, and both engender more harm. As clinics close and abortion becomes less accessible, more people will be pushed into parenthood before they’re ready or able to support a child. Abortion restrictions push people into poverty; where poverty rises, so does violent crime.
The widening net of criminalization after Roe should alarm all of us. But our work is not simply to push back to life before Dobbs. We can take this moment to shine a light on how systems of oppression work in tandem to uphold the system that abortion criminalization will handily funnel more people into. And the people already long ensnared in that system must be part of the conversation, and our advocacy. This is a time to challenge the limits of our empathy — and create a broader, stronger coalition for justice.
