Red States Are Embracing Draconian Tactics to Enforce Abortion Bans

One year after Roe was overturned, not just providers but patients are being targeted

WASHINGTON, D.C. – June 24, 2022: Demonstrators rally near the Supreme Court of the United States after the court released its decision in Dobbs v. Jackson Women's Health Organization. (Shutterstock. Ben von Klemperer).

It is the one-year anniversary of Dobbs v. Jackson Women’s Health Organization, the ruling in which a conservative Supreme Court overturned, 6-3, Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), the twin cases that for 50 years had protected the reproductive freedom of women. The conservative justices ruled that the two cases had erred in finding a constitutional right to an abortion and left the issue to individual states to decide as they see fit.

The ruling has had far-reaching consequences and produced a labyrinth of laws in various states. Three states—Michigan, South Carolina, and Vermont—have gone so far as to approve state constitutional amendments protecting abortion rights. By contrast, the Guttmacher Institute and others have documented that abortion has or will soon be illegal or severely restricted in 24 states.

The details of each law differ from state to state, and what they do—or do not —require can be complicated. Even states that protect abortion access still regulate it, sometimes heavily to ensure the safety of the procedure, but all too frequently for less well-meaning purposes. These restrictions include, among other things, requiring those getting an abortion to have state-mandated counseling on abortion’s negative aspects (17 states), a waiting period of at least 24 hours between the counseling and the abortion itself (12 states), prohibiting abortion after a certain gestational period (43 states), requiring abortions to be performed in a hospital (20 states), and with two physicians in attendance (17 states).

Harsh Restrictions Are Spreading from Providers to Patients

But states don’t only differ in their laws. They also differ in how and to what extent they enforce them. While policing abortion has a long history, serious new penalties have emerged in the wake of the Dobbs decision. Penalties for abortion which, as of now are focused on providers, range from significant fines and lengthy jail time in states like Indiana, Florida, and Missouri, all the way to possible life imprisonment in Alabama and Texas. In addition to fines or jail, some states will also suspend the license of any participating medical practitioners.

Abortion opponents have long insisted that they don’t plan to target women seeking abortions but only providers who perform them. But that distinction is already slipping. Some legislators in red states want to charge women who have medication abortions with “fetal homicide” and/or “practicing medicine without a license.” Bills and legal provisions have been introduced in states such as Texas, Kentucky, South Carolina, Arkansas, and others that would make patients criminally culpable for their abortions.

Even more frightening, “pro-life” Republicans in some red states like Alabama and Louisiana are proposing bills that would in a twist of dark irony, punish people who undergo an abortion with the death penalty. Thankfully, so far, efforts to criminalize and prosecute patients, particularly with measures such as prison or death, are fringe tactics that haven’t succeeded.

The New War on (Abortion) Drugs Will be Just as Bad as the Old One

The Brookings Institution’s Vanessa Williamson and John Hudak argue that as the restrictions on abortion expand to include those on abortion drugs such as mifepristone, enforcement tactics will begin to mirror the invasiveness, severity and disparate impact on minorities similar to the disastrous war on drugs. More than half of abortions today are carried out using a two-pill treatment that terminates pregnancies up to 10 weeks. But given that 14 states now have either banned all abortions or those after six weeks, women there who resort to abortion-inducing drugs will be natural targets of enforcement.

As Charles Silver argued in Health Affairs just before the Dobbs ruling:

First, pro-life states will make abortion pills more expensive and more dangerous but will not prevent pregnant residents from obtaining them. Second, as their initial efforts come up short, these states will clamp down harder by imposing additional restrictions that are increasingly invasive and destructive.

Silver stressed that as with other substances, restricting abortion medications will create a dangerous black market and render reproductive care less safe. He warns that this is likely to be accompanied by crackdowns on civil liberties:

As evidence mounts that residents are skirting their laws, pro-life states will act ever more aggressively. They will enact “bounty hunter” laws that reward people for reporting women who end pregnancies and the providers who assist them. They will make it a crime to help pregnant women obtain abortion pills from other states and incarcerate violators. Following the model developed for incidents of child abuse, they will impose mandatory reporting requirements on doctors, lawyers, and other professionals who learn about abortions. They will use police forces, wiretaps, and sting operations to track down and arrest domestic distributors of abortion drugs. They will imprison young women who violate their rules. They will search cell phones and subpoena records from companies that support the health and fitness apps that women use to track their periods and contraception use.

Emerging trends suggest that Silver was prescient. Nebraska passed a law in 2010 banning abortions after 20 weeks. But it was not enforced—until Dobbs. This spring, Nebraska charged Jessica Burgess and her daughter with performing an illegal abortion. What is most noteworthy about the prosecution, says Business Insider’s Katherine Tangalakis-Lippert, is that a key piece of evidence against the duo was provided by Meta, the parent company of Facebook.

Prosecutors said Burgess helped her daughter find and take pills that would induce an abortion. (The teenage Burgess also faced charges of illegally disposing of the fetal remains.) TechCrunch also reported that internal chat logs were provided to law enforcement officers by the social media company, which indicated the pair had discussed their plan to find the medication through the app.

It stands to reason that if abortion is treated like murder and pregnant women who have abortions are considered murderers, then the tactics used to catch murderers will also be deployed against these women. In this case, first Nebraska banned abortions after 20 weeks, making it hard for Burgess’ daughter to obtain the procedure safely after that from a trained professional. In her desperation, when she resorted to a less safe and effective alternative, she was slapped with criminal charges. (Medical guidance varies on the use of mifepristone, with the U.S. Food and Drug Administration (FDA) recommending its use up to 10 weeks into the pregnancy and the Royal College of Obstetricians and Gynaecologists in the U.K. saying it is safe up to 24 weeks.)

Texas: Trendsetter in Deputizing Private Citizens for Abortion Enforcement

In its zeal to stop all abortions, Texas passed a law (which went into effect last year after withstanding legal challenges) that allows private citizens to sue those who have aided or helped someone get an abortion. Opponents have dubbed these laws “vigilante” and “bounty hunter” laws since they use taxpayer dollars to remunerate those who successfully sue abortion providers. Remuneration for a successful suit in Texas begins at $10,000, creating significant incentives for people to monitor and prosecute others.

These laws circumvent potentially unconstitutional interference with liberties, such as criminalizing the right to travel in order to get an abortion across state lines. While the first attempt at suing to collect a bounty recently failed in court, pro-choice advocates believe that this was a unique win and unlikely to be repeated in the future.

Following Texas' lead, Idaho has also adopted a version of the “bounty hunter” law, allowing the families and husbands of women who have had abortions to sue them. Idaho is also beginning to police people’s right to travel freely, becoming the first state to make helping a minor travel out of state for an abortion without parental consent punishable with up to five years imprisonment. However, even helping minors procure a physician out of state would get you between two and five years.

Abortion Foes Want More Crackdowns

Still, some conservatives complain that abortion is continuing privately through the use of medication at home hidden from the eyes and reach of the state. They want to ban all commonly used abortion medications and impose jail time on people “trafficking” abortion pills. Because abortion medication can be acquired by private citizens by mail, this limits the power of any law focused on prohibiting abortion as a formal medical procedure. This has led to attempts by anti-abortionists to sue to ban the drug mifepristone in Texas, where a judge found in their favor.

However, the lawsuit failed when brought to the Fifth Circuit Court of Appeals. The court held that claims by anti-abortion activists that the FDA had allowed an unsafe drug onto the market were unfounded, and therefore mifepristone is permitted under federal regulations. The Supreme Court issued a stay on legal proceedings, allowing the drug to continue to be used while returning the legal debate to the lower court. Some 37 states currently permit the use of mifepristone.

Though abortion medications enjoy the protection of the FDA for now, future lawsuits to get them off the market are likely to continue as well as the policing of private mail and other avenues of acquisition. Thus, the war against abortion medication will continue to threaten personal privacy, pharmaceutical and healthcare freedom (ironically a cause usually favoured by the right), bodily autonomy, and worse.

Texas is arguably the trendsetter for draconian abortion enforcement. But overzealous anti-abortion enforcement will risk a backlash.

Former Vice President Mike Pence—and a Republican presidential hopeful—last week declared that he will push for a national abortion ban after 15 weeks if elected.  But if the draconian enforcement of abortion bans at the state level post-Dobbs is any indication, a national ban will inevitably mean draconian federal enforcement. States that are currently safe havens for abortions will become outlaws, setting up a confrontation between anti-abortion and pro-choice states.

Though the right may feel that it has the wind at its back with the fall of Roe, by and large, Americans are wary of their extreme proposals. According to NPR, 66% of Americans favor allowing abortions in the first trimester, when the majority of abortions are carried out. Both NPR and the Pew Research Center found that 61% of Americans generally favor abortion rights, while Gallup finds support as high as 85%.

Thus, abortion extremism could well make the pro-life movement’s Roe victory short-lived.

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