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06.03.11

The Return of Back-Alley Abortions

In states across the country, women are being arrested for the crime of ending their own pregnancies—though they have a constitutional right to do so in a doctor’s office. Michelle Goldberg on a worrisome new trend.

Underground abortions have returned to the United States, just as pro-choice activists have warned for years. And women have started going to jail for the crime of ending their own pregnancies, or trying to.

This week Jennie L. McCormack, a 32-year-old mother of three from eastern Idaho, was arrested for self-inducing an abortion. According to the Associated Press, McCormack couldn’t afford a legal procedure, and so took pills that her sister had ordered online. For some reason, she kept the fetus, which police found after they were called by a disapproving acquaintance. She now faces up to five years in prison, as well as a $5,000 fine.

Idaho recently banned abortions after 20 weeks, and McCormack’s fetus was reportedly between five and six months old. But according to Alexa Kolbi-Molinas, a staff attorney for the ACLU’s Reproductive Freedom Project, under Idaho law, McCormack could have been arrested even if she’d been in her first trimester because self-induced abortion is illegal in all circumstances. “It doesn’t matter if it’s an 8- or 10- or 12-week abortion,” says Kolbi-Molinas. “If you do what you could get lawfully in a doctor’s office—what you have a constitutional right to access in a doctor’s office—they can throw you in jail and make you a convicted felon.”

While horrific, McCormack’s case is not unique. In recent years, several women have been arrested on suspicion of causing their own abortions, or attempting to. Most have come from conservative rural states with few clinics and numerous restrictions on abortion. In America’s urban centers and liberal enclaves, the idea of women being prosecuted for taking desperate measures to end their pregnancies might seem inconceivable, a never-again remnant of the era before Roe v. Wade. In fact, it’s a slowly encroaching reality.  

Even more, these cases demonstrate that criminalizing abortion means turning women who have abortions into criminals.

In 2005, Gabriela Flores, a 22-year-old Mexican migrant worker, was arrested in South Carolina. Like McCormack, she had three children and said she couldn’t afford a fourth, and so she turned to clandestinely acquired pills. (The drug she took, Misoprostol, is an ulcer medicine that also works as an abortifacient and is widely used in Latin American countries where abortion is illegal.) Initially facing two years in prison, she ended up being sentenced to 90 days.

In 2009, a 17-year-old Utah girl known in court filings as J.M.S. found herself pregnant by an older man who is now facing charges of using her in child pornography. J.M.S. lived in house without electricity or running water in a remote part of the state, several hours’ drive from the nearest clinic, which was in Salt Lake City. Getting there would have required not just a car—her area had no public transportation—but money for a hotel in order to comply with Utah’s 24-hour-waiting period, as well as for the cost of the abortion itself.

According to prosecutors, when J.M.S. was in her third trimester, she paid a man $150 to beat her in the hopes of inducing a miscarriage. The fetus survived, but she was charged with criminal solicitation to commit murder. When her case was thrown out on the grounds that her actions weren’t illegal under the state’s definition of abortion, legislators changed the law so they would be able to punish women like her in the future. Meanwhile, prosecutors have appealed J.M.S.’ case to the Supreme Court, and observers expect it to rule against her. She could still face a trial and prison time.

A woman doesn’t even have to be trying to abort to find herself under arrest. Last year, a pregnant 22-year-old in Iowa named Christine Taylor ended up in the hospital after falling down a flight of stairs. A mother of two, she told a nurse she’d tripped after an upsetting phone conversation with her estranged husband. Though she’d gone to the hospital to make sure her fetus was OK, she confessed that she’d been ambivalent about the pregnancy and unsure whether she was ready to become a single mother of three.

Suspecting Taylor had hurled herself down the stairs on purpose, the nurse called a doctor, and at some point the police were brought in. Taylor was arrested on charges of attempted feticide. She spent two days in jail before the charges were dropped because she was in her second trimester, and Iowa’s feticide laws don’t kick in until the third.

These cases are a harbinger of what’s to come as abortion laws become increasingly strict and abortion clinics harder to access in the more conservative parts of the country. They demonstrate the lengths to which women will go to end unwanted pregnancies. But even more, they demonstrate that criminalizing abortion means turning women who have abortions into criminals.

The antiabortion movement likes to see itself as pro-woman. Most of its spokespeople talk about protecting women from abortion, insisting they’re not interested in seeing them punished. “It’s tragic that this young woman felt that this was her only way out,” National Right to Life President Carol Tobias said in a statement in response to questions about the McCormack case. “The pro-life movement has never supported jail sentences for women who are victims of the abortion culture and abortion industry.”

Tobias said her group calls on Idaho officials “to engage in more publicity about the network of pregnancy resource centers and about the existence of Idaho’s safe haven law—either of which would have helped this young mother and saved her child.” But she didn’t call on them to release McCormack or to change the laws under which she’s being charged. If these sorts of prosecutions aren’t what the antiabortion movement had in mind when it pushed wave after wave of state-level legislation, now might be a good time to speak up.

Michelle Goldberg is a senior contributing writer for The Daily Beast/Newsweek. She is the author of The New York Times bestseller Kingdom Coming: The Rise of Christian Nationalism and The Means of Reproduction: Sex, Power and the Future of the World, winner of the 2008 J. Anthony Lukas Work-in-Progress Award and the Ernesta Drinker Ballard Book Prize. Goldberg's work has appeared in Glamour, Rolling Stone, The Nation, New York magazine, The Guardian, and The New Republic. Her third book, about the world-traveling adventuress, actress and yoga evangelist Indra Devi, will be published by Knopf in 2012.