When Self-Abortion is a Crime

53 Pages·2017·1.44 MB·English

When Self-Abortion
is a Crime: Laws That
Put Women at Risk
A Report By:
The National Institute for Reproductive Health
June 2017
The National Institute for Reproductive Health (National Institute) develops and implements
innovative and proactive strategies on the state and local levels to galvanize public support,
change policy, and remove barriers to reproductive health care, including abortion. Believing
that a ground-up strategy is necessary to create lasting change, we work through a
partnership model with organizations at the local, state, and national levels. We also engage in
groundbreaking public opinion research and policy analysis to shape a new national
conversation about reproductive freedom.
©2017 National Institute for Reproductive Health
National Institute for Reproductive Health
14 Wall Street Suite 3B
New York, NY 10005
Tel. [phone]
[email protected]
www.nirhealth.org
Acknowledgements:
This report was written by Jordan Goldberg, Senior Policy Advisor, Rose MacKenzie, Policy
Counsel, Winnie Ye, Policy and Program Associate, and Emily Kadar, Government Affairs and
Advocacy Manager; with research assistance from Laura Narefsky, Legal Intern, and Shirin
Dhanani, Legal Intern. Staff of the National Institute, including Andrea Miller, President; Maria
Elena Perez, Chief Program Officer; Tara Sweeney, Vice President for Communications;
Meredith Kormes, Associate Director of State Initiatives; and Danielle Castaldi-Micca, Director
of Government Relations, contributed to and edited this report. Annie Zegers, Communications
Assistant, and Zahra Bukhari, Communications Intern, designed this report.
Special thanks to Jill Adams, Melissa Mikesell, and Farah Diaz-Tello from the SIA Legal Team,
and Diane Horvath-Cosper from Physician for Reproductive Health, who provided valuable
feedback and guidance on this report. The National Institute also gratefully acknowledges the
foundations and individual donors who make our work possible.
Contents
I. Introduction 1
II. Self-Abortion in the United States 3
III. The Law Governing Abortion 8
IV. How Criminalizing Self-abortion Hurts Women and Families 23
V. Why is Self-abortion (Still) A Crime? 27
VI. Focusing on Women’s Health and Safety 32
I. Introduction: Reflecting on the Criminalization
of Self-abortion at a Pivotal Moment in
American History
“Abortion is a fact of life. Women have always had them and they always will.”1
Throughout history, women in the United drugs to end their pregnancies, self-
States and around the globe have sought abortion has also been associated with
out abortions or induced their own when serious injury and death.7 After Roe v.
faced with an unintended pregnancy. The Wade effectively made abortion legal
law governing their actions, however – as across the United States in 1973, it was
well as the legal consequences for those widely believed that the resulting arrival of
actions – has changed over time. Abortion safe and accessible abortion from medical
was legal and generally available across the providers would put an end to the
United States until the mid-1800s, when conditions that had historically led women
every state criminalized the practice. to take matters into their own hands.
From the mid-1800s until 1973, abortion But as we approach the 45th anniversary of
was generally illegal across the country, but Roe, our country sits at a new crossroads on
widely practiced at times by medical abortion. Over the past four decades, and
professionals and lay practitioners alike, as with a marked acceleration since 2010,
well as women themselves. Despite its state legislators in many parts of the
illegality, throughout this period the general country have created a patchwork of
consensus was that the woman2 herself was multiple, often-onerous restrictions on the
not a criminal.3 Indeed, only a few states provision of abortion care, such that while
ever enacted statutes specifically abortion remains technically legal, it not
prohibiting women from inducing abortions always accessible or affordable for women
upon themselves, and those statutes were who need it. At the same time, there are
virtually never enforced.4 “Self-induced now methods of self-induction that may be
abortion [was] never . . . treated as a safe and effective.8
criminal act.”5
Now, even as women may be able to self-
In the 20th century, this phenomenon was induce an abortion without attendant
generally viewed as an unfortunate – and hazards to their health, they may face
potentially risky – result of lack of access to another serious complication: prosecution
safe, legal, affordable abortion care from a and incarceration. In a few states, including
medical provider.6 Although some women New York, inducing an abortion on oneself
have safely and effectively used herbs or remains a crime. And, unfortunately, in
1 When Self-Abortion is a Crime: Laws That Put Women at Risk
states where self-abortion is not an explicit phenomenon, posing a great risk to their
crime, overzealous prosecutors have been health and rights.9
over-reaching with other criminal statutes
to punish women who act to end their own This paper provides a historical perspective
pregnancies. on the criminalization of abortion and self-
abortion in New York and the United States
Arguably, more than at any other time in and documents the harm such laws have on
the complicated legal history of abortion in the health and lives of women and their
the United States – from legal to illegal and families. It also suggests some policy
back to legal again – the prosecution and approaches that would lead to better health
imprisonment of women for inducing their outcomes for women and expand women’s
own abortions and for other behavior ability to fully exercise their own
during pregnancy has become a full-fledged constitutional rights.

2 When Self-Abortion is a Crime: Laws That Put Women at Risk
II. Self-Abortion in the United States

During the 18th and early 19th centuries, self-abortion was the most common form of
abortion.10 Women took drugs to “restore” or “bring on” their menses, often using herbs and
plants that could be found in the woods or grown in home gardens, sometimes based on
recipes written for this purpose in home medical guides.11 Growing, taking, and selling these
herbs and drugs was entirely legal, and by the mid-19th century was a booming business.12
Local apothecaries had a large trade in herbal and other abortifacient preparations and “female
remedies,” and the mid-1800s saw a “great upsurge of abortion.”13 In fact, the first statutes
that criminalized abortifacients were poison control laws designed to protect women from
harmful drugs and did nothing to regulate the act of self-inducing an abortion.14

Once states began to criminalize abortion in estimated the frequency of illegal induced
the mid-1800s, many women turned to abortions to be somewhere between
illegal abortions provided by practitioners, 200,000 and 1.2 million annually.17 An
while others ended their pregnancies with analysis that extrapolated from North
herbs, drugs, or physical trauma. Women Carolina data estimated that there were
sought out illegal abortions or performed 829,000 illegal abortions in 1967,18 while
their own abortions for the same reasons as another extrapolating from the CDC’s death
they had when it was legal – to end rate from illegal abortion estimated that
unintended pregnancies. A study of the 130,000 illegal abortions took place in
history of illegal abortions among low- 1972.19 Further, studies have concluded
income women in New York City found that that in the early years of legalization, about
most who attempted an abortion did so in two-thirds of legal abortions in effect
the middle of their child bearing years and replaced illegal procedures, and one study
the procedure was “predominately used to estimated that meant there were perhaps
stop pregnancies that came at an somewhere between 2.5 and 6.4 million
inappropriate time or from a union that was illegal procedures performed in the 4-7
unsatisfactory[.]”15 years prior to legalization.20

The actual rate of abortions during the Although abortion was illegal in almost all
period in which abortion was mostly illegal circumstances between the mid-1800s and
is difficult to estimate, although a few 1973, there were ways to legally end a
studies and analyses have attempted to do pregnancy for women with means,
so. One expert writing in 1860 believed that particularly those who had a longstanding
one in every five pregnancies ended in relationship with a physician.21 Many states
abortion across the United States.16 required a standing committee in a hospital
Another assessment, during the 1950s, to review abortion requests, meaning that a
3 When Self-Abortion is a Crime: Laws That Put Women at Risk
woman would need to pay for both the Studies documented that “the number of
review process and the procedure itself.22 deaths following illegal abortions was
In the mid-20th century, travel to the United significant. In the late 1920s, a Children’s
Kingdom, Japan, or the handful of states Bureau study documented that at least 11
that liberalized their abortion laws before percent of deaths related to pregnancy and
Roe v. Wade was another option for childbearing followed illegal abortions.”29
women, but of course only for those who Moreover, to the extent it is possible to
could afford the travel on top of the price of document, the mortality and morbidity
the procedure.23 This meant that low- rates due to illegal abortion demonstrated a
income women were much more likely to clear class and racial disparity in access to
turn to illegal abortion, and many would safe versus unsafe abortion, as well as a
likely turn to self-induction.24According to likelihood of a higher rate of self-abortion
one study, women from the poorest among women of color who were also often
neighborhoods in New York City who faced low-income, especially black and Puerto
an unintended pregnancy had little access Rican women.
to medically supervised abortion and
mostly tried to terminate their own In the post-World War II years, Puerto Rican
pregnancies.25 immigration to the mainland United States
increased exponentially,30 but when they
A survey of women in 1965 asking about arrived, Puerto Rican women frequently
their reproductive health history found that lacked access to health care and were
80% of those who had reported abortion historically the targets of a number of forms
attempts had tried a self-abortion, and only of reproductive oppression and coercion.31
2% had had a physician involved in any In the United States, they and other “poor
way.26 Another study by Dr. Judith Belsky at women, lacking funds, often used
Bellevue Hospital in the 1960s showed that inexpensive, and often dangerous, self-
many of her patients attempted self- induced measures” and might not have
abortion both before and alongside been able to afford follow-up medical care
attempting legal abortions, including by when there were complications.32 Between
taking drugs, mechanical interference with 1960-62, one out of two maternal deaths
the pregnancy, or physical trauma.27 Among among all women of color was caused by
199 patients seeking therapeutic, legal abortion and specifically among Puerto
abortions, a third had already tried to self- Rican women, as compared with one out of
induce or obtain an illegal abortion, and four for white women.33
more than 80% of those who were denied a
legal abortion ended up self-inducing or The mortality and morbidity rate in the
having an illegal abortion. 28 1960s among her patients, particularly her
low-income patients of color, led Dr. Belsky
4 When Self-Abortion is a Crime: Laws That Put Women at Risk
to conclude that “broad restrictions on Around the same time, in 1994, Loretta
abortions . . . may result in severe distress Ross and a group of other prominent
among these patients, possibly leading to women of color created a new framework
dangerous attempts at self-abortion and to to view and advocate for reproductive
emotional breakdown” and that access to freedom as an aspect of social justice,
abortion should therefore be available “on calling it reproductive justice. Recognizing
request in meeting the physical and that there were ongoing threats not just to
psychological health needs of abortion access but to the full range of
disadvantaged women.”34 The mortality reproductive decision making for women of
rate due to illegal abortions for non-white color, this framework was developed to
women from 1972-1974, the time period ensure that the constitutional rights to
straddling legalization, was 12 times that for privacy, liberty, autonomy, and dignity
white women.35 meaningfully protected the most
marginalized women – poor women of
After Roe v. Wade in 1973, self-abortions color – whose decisions about reproduction
continued for a variety of reasons, including are limited not only the legality of abortion,
lack of access to providers; language but by the availability and accessibility of
barriers; restrictions on public insurance abortions, state-sponsored eugenic
coverage, such as the Hyde Amendment; or sterilization, punitive limits on funding for
a lack of trust of the medical system.36 women who have children while receiving
Then, in the late 1980s and the 90s, there public benefits, and a host of other related
were public discussions within the feminist reproductive oppressions.39
movement of a need for the widespread
The reproductive justice movement grew
return of “self-help” abortions, “menstrual
from these and other convenings and began
extractions”, and/or groups like the Jane
to advocate for the repeal of the Hyde
Collective, an underground network that
Amendment and broader access to abortion
safely performed illegal abortions from
1969 until the procedure was legalized.37 for women of color, and for policies that
ensure that all people have “the right not to

have a child[;] the right to have a child; and
These discussions were prompted by new
[t]he right to parent children in safe and
threats to access to abortion from state
healthy environments.”40
legislatures, a closely divided U.S. Supreme
Court, and a significant and frightening
In the last decade, there has been a marked
increase in violence and harassment aimed
increase in interest by both researchers and
at clinics and health care personnel involved
the media in the incidence and
in abortion care, along with the ongoing
circumstances of self-abortion worldwide.
financial burdens posed by the lack of
Since the discovery that misoprostol,
insurance coverage for abortion.38
commonly used to treat ulcers, can be used
5 When Self-Abortion is a Crime: Laws That Put Women at Risk
alone as an abortifacient and the the full number of women attempting self-
subsequent development and approval of abortion, as women who successful self-
the mifepristone/misoprostol combination abort would not likely visit a clinic.
for medication abortion, self-abortion has
become both potentially safer and less After 2010, however, the landscape of
obvious.41 Although the combination of abortion access again changed dramatically,
mifepristone and misoprostol is the with hundreds of new abortion restrictions
standard of care for medication abortions enacted, particularly at the state level.
up to ten weeks in the United States, with a Seven years later, more than half of all
95% or more effectiveness rate,42 states are classified as “hostile” or
misoprostol used appropriately alone is “extremely hostile” to abortion.45 These
85% effective and will safely end most restrictions have significantly decreased
pregnancies under 16 weeks gestation.43 access to abortion services – 57% of
American women of reproductive age live in
After Roe v. Wade in 1973, self-
these hostile states, and 39% live in a
abortions continued for a variety of county with no abortion clinic.46
reasons, including lack of access to

providers; language barriers;
There have been several attempts to
restrictions on public insurance
determine if self-abortion has become more
coverage, such as the Hyde
common as a result of these restrictions. A
Amendment; or a lack of trust of
2014 survey of abortion patients found
the medical system.
comparable numbers to the 2008 survey –
1.3% of abortion patients reported that
Two studies that tried to measure the
they had ever taken misoprostol – although
incidence of self-induction in the United
the practice was becoming more dispersed
States from 2008 to 2010 suggested that it throughout the United States.47 A 2015
was still quite uncommon: slightly under 3%
survey in Texas estimated, based on survey
of abortion patients surveyed at clinics
data that somewhere between 100,000 and
reported taking something to try and cause
240,000 women had attempted self-
an abortion prior to coming to the clinic abortion at some point in their lives.48
(1.2% had self-administered misoprostol

and 1.4% had used some other substance
The New York Times performed an analysis
such as vitamin C or herbs), and 4.6 % of
of Google searches across the United States
respondents who had ever been pregnant
for information about self-abortion and
reported attempting self-induction at some
found that there were more than 700,000
point in their lives.44 It should be noted that
searches looking for information on self-
these are patients who were seen in abortion in 2015 alone.49 Eight out of ten of
abortion clinics, and might not represent
the states with the highest search rates
6 When Self-Abortion is a Crime: Laws That Put Women at Risk
were those classified by the Guttmacher while others discussed self-induction as
Institute as hostile or extremely hostile to being more in line with their religious and
abortion.50 Moreover, searches for ethical views.56 In addition, some women
information on self-abortion experienced a self-induce abortions out of concerns about
40% leap in 2011, just as the increase in interacting with the medical system,
abortion restrictions got underway.51 preferring to have control over their own
abortions. 57
In 2015, after a number of abortion
restrictions had passed in Texas, In a 2016 article, Glamour surveyed 15
researchers concluded that: abortion providers in more than 10 states
about this issue and “most . . . said they
Poverty, limited resources, and local knew of women trying to self-induce
facility closures limited women’s ability abortions; five had seen patients who had
to obtain abortion care in a clinic setting attempted it.”58 The founder of Women on
and were key factors in deciding to
Web, an organization that mails
attempt abortion self-induction. This is
misoprostol to women in countries where
consistent with other research
abortion is banned, said she received
indicating that barriers to accessing
clinic-based care are an important “nearly 600 emails last year from Americans
reason why women decide to attempt frantic to end pregnancies under hard
to self-induce their abortion.52 circumstances.”59 A group of anonymous

activists said that “together they’ve helped
When asked why they sought to induce an
at least 275 women perform abortions at
abortion on themselves, study respondents
home.”60
identified the closure of their local clinic

and not having the money to travel or to
Women have turned to self-abortion for
pay for a procedure as two of the four
centuries, during periods of legality and
primary reasons for attempting self-
illegality, for many of the same reasons –
abortion, even though they would have
lack of access to a medical professional,
rather have had their procedure at a
logistical accessibility, financial barriers,
clinic.53 Self-induction was also more
cultural barriers, or because they do not
common in women who “reported that
want to engage with the formal medical
they had ever found it difficult to obtain
system.61 As the numbers of state-level
reproductive health services,” showing that
abortion restrictions have sky-rocketed,
accessibility of health services overall has
clinics have closed, and many women
an impact on women’s decisions. 54 Some
struggle to afford abortion, more women
women in Texas also identified the shame
may be turning to self-abortion.
and stigma associated with abortion as one
of the primary reasons for self-inducing,55
7 When Self-Abortion is a Crime: Laws That Put Women at Risk