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Wednesday, December 23, 2015

"... if police start investigating self-abortion as a crime, women who have miscarriages are also subject to interrogation, arrest, and even incarceration."

The coat hanger abortion is back, and that’s scary for all women

If a woman can be charged with attempted murder for trying to give herself an abortion, what stops police from investigating miscarriages?

By Emily Crockett, December 23, 2015

A Tennessee woman was charged with attempted first-degree murder last week for allegedly trying to use a coat hanger to end her pregnancy. Anna Yocca, 31, was arrested in Tennessee in September after she showed up bleeding at a hospital, fearing for her health and safety. She gave birth to a very premature baby boy, who was just 24 weeks along and weighed one and a half pounds.

It's a tragic case. The baby has severe health problems, as most infants born that early do, and will likely require oxygen for the rest of his life. And whatever drove Yocca to try to end her pregnancy herself, it probably involved serious desperation if she was willing to take her chances by sticking a sharp metal object into her cervix.

But this story is about a lot more than one woman and one child. It's even about more than America's dwindling access to safe, legal abortion. This story has horrifying implications for all pregnant women, even those who don't want an abortion. It shows how any woman can be treated like a criminal if law enforcement decides to take an interest in her pregnancy.

The coat hanger is just the beginning

To be sure, it's shocking to see a new case of a "coat hanger abortion" — the symbol of pre–Roe v. Wade America, when women died or were maimed by the thousands every year because they were that desperate to end their unwanted pregnancies. "I never thought I would hear of a coat hanger abortion in my medical life," writes OB-GYN Jen Gunter.

Pro-choice advocates fear that more women will try to self-induce abortions at home, since a skyrocketing number of state-level abortion restrictions have made the procedure much harder to access in the past five years. Tennessee, where Yocca lives, is no exception. Women now have to make two trips to the doctor, spaced 48 hours apart. They may have to pay about $500 to $1,500 out of pocket depending on how far along they are, since Tennessee is one of the many states that have outlawed abortion coverage in their Affordable Care Act health plans.

We don't know what motivated Yocca's decision, but these restrictions definitely make it harder for women to access abortion. Research suggests that the more restricted abortion is, the more often women take matters into their own hands.

But here's the most alarming part of Yocca's case: Abortion is still legal in America. Yocca is being prosecuted as if it weren't. She is being charged with attempted first-degree murder. That's a dangerous legal precedent for all pregnant women.

It's not clear what injuries Yocca's child sustained from the coat hanger itself, but his reported health problems are consistent with the health problems you'd expect in any baby born that prematurely. Only about half of infants born at 24 weeks survive at all. And self-abortion attempts with sharp objects are more likely to result in very early labor, as was the case here, than to kill the fetus directly.

"If first-degree murder charges apply in this case, then any woman who has a 24-week premature delivery could find herself subject to police interrogation, investigation, and arrest, if it is believed anything she did might have contributed to that premature birth," said Lynn Paltrow, executive director of National Advocates for Pregnant Women (NAPW).

And Yocca isn't the first, nor is she likely to be the last, to be harshly prosecuted for how her pregnancy turned out.

What happens when the criminal justice system takes on pregnancy

Reproductive rights advocates say it's a terrible idea to charge women like Yocca with anything at all, much less attempted murder. And even pro-life advocates who want to outlaw abortion don't usually argue that women should be thrown in jail for seeking one.

For one thing, the threat of criminal charges can discourage women from seeking medical help in a dire situation. "Bleeding to death or facing prison is a choice no woman should ever be forced to make," writes Robin Marty at Cosmopolitan.

The other problem, advocates say, is that pregnancy is complicated. A woman can have a miscarriage or a premature birth for any reason, often due to factors out of her control. And doctors can't really tell the difference between a self-induced abortion and a natural miscarriage or pre-term labor, unless there's an obvious injury. So if police start investigating self-abortion as a crime, women who have miscarriages are also subject to interrogation, arrest, and even incarceration.

This isn't just a theoretical possibility, and it doesn't just happen in countries like El Salvador where abortion is outlawed. Research from NAPW found 413 cases of US women whose pregnancies caused their arrest, detainment, or forced medical intervention from 1973 to 2005 — probably a drastic undercount, and not including 250 other cases NAPW knows about since 2005. The rate of these kinds of cases seems to be going up, Paltrow said.

NAPW documents all kinds of likely human rights violations: women being arrested or jailed after a miscarriage, women being charged with murder after attempting suicide while pregnant, women being strapped down and forced to have unwanted C-sections, women being stripped of their parental rights for mild drug problems or even taking a single Valium pill while pregnant.

"If we live in a country where it is acceptable to view pregnant women as criminals, there is a limitless number of criminal laws from which prosecutors have to choose," Paltrow said. That is, if prosecutors are really determined to punish a pregnant woman for doing something they dislike, they can find a way. If a murder or fetal homicide charge won't stick, there are always charges like practicing medicine without a license or improperly disposing of fetal remains.

Drug laws are a particularly common tool prosecutors use to throw pregnant women in jail. Pregnant women who use drugs are charged with chemical endangerment, child abuse, even assault — even though we now know that illicit drug use doesn't do the kind of long-term harm to a child that people think it does. Drug use on its own is also hard to separate from other factors that we know impact fetal health like poverty, poor nutrition, and lack of prenatal care. If a drug-addicted woman happens to have a premature birth or a child with health problems, you can't really prove it was caused by the drug use. And prosecuting pregnant women for drug use is likely to discourage them from seeking the medical care or addiction help they need to have a healthy pregnancy.

Poor pregnancy outcomes can happen for any number of reasons. If the courts equate poor choices during pregnancy with child abuse, then poverty and bad nutrition can become criminal acts. Realistically speaking, nobody's going to throw a wealthy white woman in jail for eating sushi during her pregnancy if she happens to have a miscarriage afterward. They could try, of course. But NAPW found that black women and economically disadvantaged women are more likely to be arrested and charged for pregnancy-related issues. Prosecutors are more likely to succeed if the woman they're charging is marginalized and has fewer resources to fight back, or if she has done something stigmatized like using drugs or attempting self-harm.

The legal issues at stake in the Tennessee coat hanger case

Like many states, Tennessee does restrict abortion after a fetus is viable, which is usually around 24 to 26 weeks but varies with every pregnancy. Depending on her medical circumstances, Yocca probably couldn't have gotten a legal abortion in Tennessee at 24 weeks, when she allegedly tried to self-induce. It's even possible she could be charged with a felony for "attempt to procure a miscarriage."

Of course, attempted first-degree murder is something else entirely. Prosecutors are probably bringing this charge because they think Yocca's actions are horrific and deserve to be harshly punished. They see a child who will be disabled for the rest of his life because of his mother's actions, and they see those actions as the definition of attempted murder.

Except that's not what Tennessee law says.  Like 37 other states, Tennessee has a "fetal homicide" law. It basically defines an embryo or fetus as a person in order to beef up penalties for crimes against a pregnant woman. But a pregnant woman can't be prosecuted under these laws for actions against her own fetus, because abortion is legal. Fetal homicide laws are supposed to protect pregnant women, not prosecute them.

But pro-choice advocates warn that when laws like Tennessee's define a fetus as a person, prosecutors can and will use the law against pregnant women. This can even happen if the law has an explicit exception for pregnant women. That's already happened to many women in Texas who have taken drugs while pregnant, as Andrea Grimes reported for RH Reality Check.

Again, anti-abortion advocates don't typically argue that we should throw women in jail for getting an abortion. States that have passed new abortion restrictions usually include criminal penalties for the doctors providing the procedure, not the women seeking it. And the vast majority of states don't even have specific laws against self-inducing an abortion on the books. But when pregnancy becomes a law enforcement issue, sometimes social norms and ideology matter more than the letter of the law.

"In a country where more and more leaders talk about abortion as killing, as murder, as like a holocaust," Paltrow said, "it was only a matter of time until prosecutors started viewing women who have abortions as criminals."

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