States Are Already Moving to Punish People Over Abortions

Anyone who mails abortion-inducing pills to someone in Tennessee could be slapped with a $50,000 charge or face up to 20 years in prison, under a Tennessee bill signed into law Thursday.

The bill comes just days after the leak of a Supreme Court draft opinion that would overturn Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide. Without Roe as a guardrail, experts predict that roughly half of U.S. states would ban abortion.

Tennessee is one of those states, which may initially make this new law seem unnecessary in a post-Roe United States. However, as legal access to abortion clinics dwindles, people will likely turn to self-managed abortion and order abortion-inducing pills online. After Texas last year enacted a law that banned abortion as early as six weeks into pregnancy, requests for help from a service that ships abortion-inducing pills spiked by 174 percent, a study found in February.

Self-managed abortion, using pills and early on in pregnancy, can be safe, medical experts say. But it does carry legal risks: If/When/How, a group that runs a legal defense for people facing criminal investigations for self-managed abortions, has discovered that since 2000, more than 60 people have faced criminal consequences for self-managing their own abortion or helping someone else manage theirs.

Abortion patients are shielded from criminal and civil penalties under the new Tennessee law. However, experts say that if prosecutors want to go after someone for a self-managed abortion, they will often find a statute that’s pliable enough to do it.

An abortion restriction that advanced this week in Louisiana does explicitly aim to penalize people who get abortions—by classifying abortion as homicide. In Louisiana, homicide is punishable with the death penalty.

The bill is headed to the full Louisiana House for debate.

Anti-abortion advocates have long grappled with the question of what do with people who get abortions: Are they deliberately murdering their own children, or are they being hoodwinked by predatory medical professionals? Successful abortion restrictions have long leaned towards the latter answer, and focused on penalizing abortion providers rather than patients. The infamous Texas abortion ban lets people sue anyone who “aids or abets” an illegal abortion—not the individuals who undergo them.

But legislation that directly targets abortion patients has occasionally surfaced. In 2021, a Texas legislator introduced a bill that would charge women and doctors who perform abortions with homicide, which in Texas is punishable with the death penalty. Another Texas lawmaker had previously introduced similar bills.

“Republicans DO NOT want to throw doctors and women in jail,” read a messaging memo drafted this week by the National Republican Senatorial Committee, the GOP’s campaign apparatus. “Mothers should be held harmless under the law.”

If Roe falls and states are able to regulate and punish abortion as they see fit, that may not be true.

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