Talk of prosecuting women for abortion pills roils antiabortion movement

By Caroline Kitchener, Ellen Francis / The Washington Post

14:33 JST, January 12, 2023

Alabama’s attorney general became the most prominent Republican official yet to suggest that pregnant women could be prosecuted for taking abortion pills, saying in recent days that a state ban targeting those who facilitate abortions does not preclude the state from seeking to penalize women under other existing laws.

The comment reflects a simmering divide within the antiabortion movement, which has long sought to treat women seeking abortions as “victims” and not as targets for punishment.

In the wake of the June Supreme Court decision that overturned Roe v. Wade, movement leaders promised that women had nothing to fear – even as Republican leaders in more than a dozen states in the South and Midwest moved aggressively to enact strict abortion bans, though almost always targeting providers rather than patients.

Alabama’s near-total ban, which took effect soon after the Supreme Court ruling, exempts abortion seekers from prosecution, including penalties only for those who help people obtain abortions. In his statement, Attorney General Steve Marshall’s office suggests that pregnant women could still be prosecuted under a separate 2006 state law that has been used to punish women for drug consumption during pregnancy.

The abortion ban “does not provide an across-the-board exemption from all criminal laws, including the chemical-endangerment law – which the Alabama Supreme Court has affirmed and reaffirmed protects unborn children,” Marshall’s office said in a statement to The Washington Post on Wednesday. It was first reported Saturday by 1819 News.

Underscoring the tensions surrounding the issue, a spokesman for Marshall issued a subsequent statement in response to The Post that appeared to back away from endorsing the prosecution of abortion seekers. “The Attorney General’s beef is with illegal providers, not women,” said Cameron Mixon, Marshall’s deputy communications director, in response to a request to interview Marshall.

Marshall’s statement comes at a moment of turmoil for the antiabortion movement, with many Republicans still reeling from a 2022 midterm election where voters turned out in droves to support abortion rights a few months after the high court’s ruling. As Congress and state legislatures convene for the new year, some lawmakers are urging caution on the abortion issue, while others press for further restrictions.

The rise of abortion pills has been a particular sore point for many antiabortion advocates, frustrated that the fall of Roe has not succeeded in halting abortions in states where the procedure is banned. Galvanized by a recent decision by the Food and Drug Administration to allow retail pharmacies to dispense abortion pills in states where abortion is legal, as well as an emerging network distributing abortion pills illegally, some hard-line Republicans are seeking ways to further crack down on the procedure.

Marshall’s office issued the statement amid questions about the FDA’s decision, invoking a state law that had been passed to protect children from the risks of home-based methamphetamine labs. Prosecutors have applied these kinds of laws to pregnant women who have taken drugs or exposed their fetuses to drugs.

Laws targeting women for taking drugs during pregnancy date to the 1980s and ’90s, said Mary Ziegler, a law professor at the University of California at Davis who specializes in abortion issues and the author of the upcoming book “Roe: The History of a National Obsession.” At the time, she said, the antiabortion movement was looking for ways to establish various laws that treated a fetus as a person.

“The basic premise is something like child abuse or child neglect – but it applies to what happens during pregnancy rather than after,” Ziegler said.

Roe prevented these laws from being applied to abortion, Ziegler said. But now that Roe has been overturned, she added, prosecutors could hypothetically use them to target pregnant women in Alabama who seek out abortion pills.

“The fact that it’s not just a high-profile politician saying this, but a prosecutor, someone who has the ability to prosecute you,” she said. “That’s a big deal.”

While the Alabama law does not apply to legally prescribed medications, Ziegler said she expects that the attorney general and prosecutors could claim that prescriptions aren’t valid for drugs that are illegal within state lines.

In addition, many pregnant women are obtaining abortion pills without prescriptions.

Even if prosecutors do not actually bring charges under the law Marshall referenced, abortion providers worry that his statement could have a chilling effect, making women think they could be prosecuted.

“It’s a scare tactic,” said Robin Marty, the director at West Alabama Women’s Center, a health clinic that provided abortion services before the ban took effect. Marshall “is going to scare some people out of obtaining medication or leaving the state and there is no prenatal care available for these people.”

National antiabortion groups were quick to distance themselves from Marshall’s statement, reiterating that they are focused on prosecuting the people who are distributing abortion pills illegally.

Comments like Marshall’s “lead to confusion about what the pro-life movement’s goals and objectives are,” said Kristan Hawkins, president of Students for Life of America, a leading national antiabortion group. “We’re focusing on the cartel. We’re focusing on the manufacturers and the distributors of these dangerous drugs.”

A woman seeking an abortion, Hawkins added, is the “second victim of the abortion industry.”

Marshall, 58, is a staunch abortion opponent. Within hours of the Supreme Court decision, he had announced that abortion was no longer legal in Alabama, declaring his state “a protector of unborn life.” Since June, he has continued to push for antiabortion policies, suggesting that those who help Alabama women obtain out-of-state abortions could be prosecuted under state law.

He won his election in November by more than 30 points, making Marshall one of several antiabortion Republicans to secure easy reelection in conservative states.

Marshall also responded this week to a legal opinion issued by the Justice Department, which said that the U.S. Postal Service may deliver abortion pills to people in states that have banned or restricted the procedure.

In his statement, Marshall maintained this would not affect Alabama. “Elective abortion – including abortion pills – is illegal in Alabama. Nothing about the Justice Department’s guidance changes that,” his office said. “Anyone who remotely prescribes abortion pills in Alabama does so at their own peril: I will vigorously enforce Alabama law to protect unborn life.”

Many state legislatures will be looking to further restrict abortion pills during their 2023 sessions. In Texas, lawmakers are considering a variety of creative and extreme proposals, including one that would require internet providers to block abortion-pill websites in the same way they can target child pornography.

While mainstream antiabortion groups have steered clear of prosecuting pregnant women who use abortion pills, they are eager to crack down on those involved in pill networks. Texas Right to Life, the largest antiabortion group in the state, has created a team of advocates assigned to investigate citizens who might be distributing abortion pills illegally.

Hawkins said she has started meeting with Republican attorneys general to discuss the best ways to halt the flow of abortion pills.

Hawkins said if she were a prosecutor, she would focus on the people who are mailing the pills, which she described as “a much better use of resources.”

“That’s where you are going to see the most impact made.”