Analysis Abortion

Abortion is Legal: So Why is Self-Abortion Care a Crime?

Susan Yanow & Steph Herold

Last week, a 20-year-old woman in New York City was arrested on charges of “self-induced abortion” and faces first-degree misdemeanor charges.  Initial news reports indicate that she intentionally caused the miscarriage/abortion of her 24-week fetus.  The woman disposed of the fetus in what was probably the only way she could think of: wrapped in plastic bags and placed in the trash receptacle of her apartment building.

Last week, a 20-year-old woman in New York City was arrested on charges of “self-induced abortion” and faces first-degree misdemeanor charges.  Initial news reports indicate that she intentionally caused the miscarriage/abortion of her 24-week fetus.  The woman disposed of the fetus in what was probably the only way she could think of: wrapped in plastic bags and placed in the trash receptacle of her apartment building.

The prosecution of this woman echoes similar cases in Idaho, Massachusetts and South Carolina.  In spite of ever-increasing restrictions, abortion is legal through the second-trimester throughout the United States, although it is inaccessible to many women.  Yet if women safely end their pregnancies without medical supervision, they face criminal penalties.

The key word here is “safely.” There are many misconceptions about what happens during a non-surgical abortion.  In fact, abortion with medications (such as misoprostol alone or in combination with mifepristone) causes a miscarriage.  The symptoms of abortion with medicines in the first trimester are exactly the same as a miscarriage, and as safe.  Rarely do women who have a miscarriage need medical attention; the same is true for women having a medication abortion.

In the second trimester, the risks of a complication after a miscarriage, whether occurring spontaneously or provoked by medicines, is somewhat higher.  However, it is notable that the woman in New York City, like the women prosecuted in three other states, was in the second trimester and did not require any kind of medical intervention after her abortion.  We have to ask then – is the outcry when women choose to self-induce truly driven by the need to protect the health and safety of the woman?  Or is this another example of over-regulation because of the politics of abortion?

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The choice to self-induce an abortion in New York City raises important questions.  The most recent prosecution of a woman for making this choice was in Idaho, in the spring of this year.  Jeanne McCormack was between 20 and 24 weeks pregnant, obtained medicines over the Internet and ended her pregnancy.  She was charged under an Idaho law that forbids abortions unless performed by an Idaho physician, and the original charges carried a possible five-year prison term.  Ms. McCormack, a low-income mother of three, said she ordered the medicines because the closest abortion provider was in Utah, and she had no money for travel or for the procedure.

Women in New York City have much better access to abortion care than Ms. McCormack did.  New York State allows state Medicaid funds to cover abortion services, and there are a number of clinics in New York City that provide abortion care through 24 weeks.  New York also does not have the restrictions, such as waiting periods and parental consent, that are insurmountable barriers for women in many other states.  So why would a woman in New York City decide to end her pregnancy by herself?

We don’t have details about why this particular woman chose this method.  Is it possible that the relentless headlines about new abortion restrictions across most states have confused some women, who may think that these laws are national?  Or is the (successful) effort by anti-abortion forces to stigmatize abortion effective enough that some women feel too much shame and fear to seek medical care when faced with an unwanted pregnancy? Or did this woman have no trusted health care provider who could direct her to a clinic?

Ultimately, it doesn’t matter what her reasons were for self-inducing an abortion. Not every woman wants clinicians involved in her health care, especially if she feels that she can take care of it herself. We each have different ways of dealing with our bodies, our sexuality, and our health care.

We do not have enough information to guess whether or not this woman fell through the gaps in the social support and health net, or made a conscious choice to end her pregnancy in a way that she felt most comfortable.  But why is self-treating an unwanted pregnancy a crime?

We certainly should do everything possible to provide excellent information to women about services and fight to keep abortion care widely available and accessible.  But if a woman decides that the best thing for her to do is to self-induce an abortion, she should have access to the best information available on how to do this safely (ie with medicines, NOT herbs) and know where to go in case of a complication.  Criminalizing her choices does not protect her health. If we believe that women have the right to control their fertility, then we must also trust women with the right to choose the methods that make the most sense for them.

Endnote: There are no scientific studies that identify any herbs as effective for ending a pregnancy, and some herbs are dangerous.  There are numerous studies documenting the efficacy and safety of mifepristone plus misoprostol, and misoprostol alone, for ending a pregnancy.

For more information on self-induction, see these studies:

Self-induction of abortion among women in the United States

How commonly do US abortion patients report attempts to self-induce?

Re-emergence of self-induced abortions

Misoprostol and attempted self-induction of abortion

The knowledge, acceptability, and use of misoprostol for self-induced medical abortion in an urban US population  

News Law and Policy

Purvi Patel Could Be Released From Jail by September

Jessica Mason Pieklo

In 2013, investigators charged Patel with both feticide and felony neglect of a dependent, based on the theory that Patel had self-induced an abortion and delivered a live infant, which then almost immediately died post-delivery.

The State of Indiana will not appeal a decision vacating the feticide conviction of Purvi Patel, the Granger woman who had previously faced 20 years in prison for what state attorneys described as an illegal self-induced abortion.

Patel was arrested in 2013 after she sought treatment at a hospital emergency room for heavy vaginal bleeding. While being examined by medical personnel, Patel told doctors she’d had a miscarriage and had disposed of the remains. Investigators located those remains and eventually charged Patel with both feticide and felony neglect of a dependent, based on the theory that Patel had self-induced an abortion and delivered a live infant, which then almost immediately died post-delivery. In February 2015, a jury convicted Patel of both counts.

But in July, the Indiana Court of Appeals vacated Patel’s feticide conviction, holding the statute was not designed to be used to criminally charge people for their own failed pregnancies. However, the court largely upheld Patel’s felony neglect of a dependent conviction, deferring to controversial medical testimony offered by the state that claimed Patel’s fetus was on the cusp of viability and had taken a breath outside her post-delivery.

Patel had initially been sentenced to serve a total of 20 years. But because attorneys for the state failed to appeal the July decision, she could be available for re-sentencing as soon as the court can schedule a hearing—which could mean a possible release as early as September, depending on her new sentence and credit for time served.

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News Human Rights

What’s Driving Women’s Skyrocketing Incarceration Rates?

Michelle D. Anderson

Eighty-two percent of the women in jails nationwide find themselves there for nonviolent offenses, including property, drug, and public order offenses.

Local court and law enforcement systems in small counties throughout the United States are increasingly using jails to warehouse underserved Black and Latina women.

The Vera Institute of Justice, a national policy and research organization, and the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge initiative, released a study last week showing that the number of women in jails based in communities with 250,000 residents or fewer in 2014 had grown 31-fold since 1970, when most county jails lacked a single woman resident.

By comparison, the number of women in jails nationwide had jumped 14-fold since 1970. Historically, jails were designed to hold people not yet convicted of a crime or people serving terms of one year or less, but they are increasingly housing poor women who can’t afford bail.

Eighty-two percent of the women in jails nationwide find themselves there for nonviolent offenses, including property, drug, and public order offenses.

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Overlooked: Women and Jails in an Era of Reform,” calls attention to jail incarceration rates for women in small counties, where rates increased from 79 per 100,000 women to 140 per 100,000 women, compared to large counties, where rates dropped from 76 to 71 per 100,000 women.

The near 50-page report further highlights that families of color, who are already disproportionately affected by economic injustice, poor access to health care, and lack of access to affordable housing, were most negatively affected by the epidemic.

An overwhelming percentage of women in jail, the study showed, were more likely to be survivors of violence and trauma, and have alarming rates of mental illness and substance use problems.

“Overlooked” concluded that jails should be used a last resort to manage women deemed dangerous to others or considered a flight risk.

Elizabeth Swavola, a co-author of “Overlooked” and a senior program associate at the Vera Institute, told Rewire that smaller regions tend to lack resources to address underlying societal factors that often lead women into the jail system.

County officials often draft budgets mainly dedicated to running local jails and law enforcement and can’t or don’t allocate funds for behavioral, employment, and educational programs that could strengthen underserved women and their families.

“Smaller counties become dependent on the jail to deal with the issues,” Swavola said, adding that current trends among women deserves far more inquiry than it has received.

Fred Patrick, director of the Center on Sentencing and Corrections at the Vera Institute, said in “Overlooked” that the study underscored the need for more data that could contribute to “evidence-based analysis and policymaking.”

“Overlooked” relies on several studies and reports, including a previous Vera Institute study on jail misuse, FBI statistics, and Rewire’s investigation on incarcerated women, which examined addiction, parental rights, and reproductive issues.

“Overlooked” authors highlight the “unique” challenges and disadvantages women face in jails.

Women-specific issues include strained access to menstrual hygiene products, abortion care, and contraceptive care, postpartum separation, and shackling, which can harm the pregnant person and fetus by applying “dangerous levels of pressure, and restriction of circulation and fetal movement.”

And while women are more likely to fare better in pre-trail proceedings and receive low bail amounts, the study authors said they are more likely to leave the jail system in worse condition because they are more economically disadvantaged.

The report noted that 60 percent of women housed in jails lacked full-time employment prior to their arrest compared to 40 percent of men. Nearly half of all single Black and Latina women have zero or negative net wealth, “Overlooked” authors said.

This means that costs associated with their arrest and release—such as nonrefundable fees charged by bail bond companies and electronic monitoring fees incurred by women released on pretrial supervision—coupled with cash bail, can devastate women and their families, trapping them in jail or even leading them back to correctional institutions following their release.

For example, the authors noted that 36 percent of women detained in a pretrial unit in Massachusetts in 2012 were there because they could not afford bail amounts of less than $500.

The “Overlooked” report highlighted that women in jails are more likely to be mothers, usually leading single-parent households and ultimately facing serious threats to their parental rights.

“That stress affects the entire family and community,” Swavola said.

Citing a Corrections Today study focused on Cook County, Illinois, the authors said incarcerated women with children in foster care were less likely to be reunited with their children than non-incarcerated women with children in foster care.

The sexual abuse and mental health issues faced by women in jails often contribute to further trauma, the authors noted, because women are subjected to body searches and supervision from male prison employees.

“Their experience hurts their prospects of recovering from that,” Swavola said.

And the way survivors might respond to perceived sexual threats—by fighting or attempting to escape—can lead to punishment, especially when jail leaders cannot detect or properly respond to trauma, Swavola and her peers said.

The authors recommend jurisdictions develop gender-responsive policies and other solutions that can help keep women out of jails.

In New York City, police take people arrested for certain non-felony offenses to a precinct, where they receive a desk appearance ticket, or DAT, along with instructions “to appear in court at a later date rather than remaining in custody.”

Andrea James, founder of Families for Justice As Healing and a leader within the National Council For Incarcerated and Formerly Incarcerated Women and Girls, said in an interview with Rewire that solutions must go beyond allowing women to escape police custody and return home to communities that are often fragmented, unhealthy, and dangerous.

Underserved women, James said, need access to healing, transformative environments. She cited as an example the Brookview House, which helps women overcome addiction, untreated trauma, and homelessness.

James, who has advocated against the criminalization of drug use and prostitution, as well as the injustices faced by those in poverty, said the problem of jail misuse could benefit from the insight of real experts on the issue: women and girls who have been incarcerated.

These women and youth, she said, could help researchers better understand the “experiences that brought them to the bunk.”

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