Self-Managed Abortions Could Be Legally Riskier After Texas’s Six-Week Law, Advocates Say
“We don’t want it to be hundreds of prosecutions before we’re ready," one reproductive rights advocate said.
Long before Texas’s law banning abortion after six weeks went into effect, reproductive rights advocates saw looming legal threats to pregnant people, especially those who choose to end their pregnancies without the help of a medical professional.
People who opt to self-manage an abortion, most commonly with FDA-approved pills, may face criminal charges in the US. These kinds of cases are very rare, but with increasing national hostility toward abortion rights, especially after the Supreme Court permitted Texas to implement its six-week abortion ban, advocates are ready for legal risks to escalate.
“It changes the culture of who is seen as suspicious [under the law],” one reproductive rights attorney, Rafa Kidvai, said of laws like the one in Texas.
Kidvai said the Texas ban, and copycat laws that may crop up elsewhere, foreshadow a future in which more restrictive state regulations shutter in-person clinics, forcing pregnant people to self-manage using pills and leaving them vulnerable to prosecution.
And many people already seek self-managed options before going to a formal provider. According to a recent study, 7% of people in Texas who sought formal abortion care first tried to end their pregnancy on their own, Liza Fuentes, senior research scientist at the Guttmacher Institute, told BuzzFeed News.
Fuentes said the state’s restrictions have created an “impossible context” where resources to access abortion safely aren’t there — and Texas is already advancing a law that would nearly ban abortion pills. The law prevents anyone who is more than seven weeks pregnant from getting abortion pills from medical providers or physicians.
Advocates like Kidvai have long been preparing for this tenuous moment, with new mechanisms to combat ever-increasing legal constraints on people’s right to choose. One such tool is the Repro Legal Defense Fund started in June by If/When/How, a nonprofit dedicated to reproductive justice.
“I think people in the reproductive movement thought that while [the number of criminalized self-managed cases] are not high now, everything is pointing to that this could happen, and we want to stop this in its tracks,” Kidvai said. “We don’t want it to be hundreds of prosecutions before we’re ready.”
Kidvai (who uses they/them pronouns) is the director of the fund, which has initially dedicated about $1 million to cover bail, legal fees, pay expert witnesses, and provide other support services for people who are prosecuted, investigated, or arrested for self-managing abortions.
Self-managed abortion is still legal under Texas’s new law, SB 8. But it prohibits any person licensed to practice medicine in the state from performing an abortion after fetal cardiac activity can be detected, and it gives private citizens a financial incentive to sue anyone involved in helping someone get an abortion after six weeks of pregnancy. That includes abortion providers, parents, nurses, and even those driving people to the clinics. The law, however, does not allow the person seeking the abortion to be sued, and because self-managed abortion does not involve a licensed medical provider, it’s not outlawed.
But SB 8 represents a shift in the legal risks to people seeking an abortion, whether they intend to end a pregnancy on their own or with a doctor’s help. SB 8 protects patients from being sued, but the Supreme Court’s decision to let a law that gives power to citizens to sue anyone “knowingly” aiding someone in getting an abortion after six weeks of pregnancy poses an unprecedented legal threat to abortion access.
Though the law prevents patients from being sued, suggesting that pregnant people won't be impacted by lawsuits surrounding the procedure they underwent feels like a "farce,” Kidvai said.
“How do they not get implicated?” Kidvai said. “It’s terrifying … People’s lives will be upended regardless of [an investigation’s] conclusion.”
And amid what Kidvai calls a “dangerous cultural moment” for reproductive justice in the US, the battle isn’t over. The Supreme Court will rule in its next term on Mississippi’s 15-week abortion ban, which poses a direct challenge to Roe v. Wade and Planned Parenthood v. Casey, two landmark decisions that decided and affirmed the constitutional right to abortion.
So Kidvai’s team is preparing for the worst while restrictions on the right to abortion increase at the state level.
“It's not a question of, is [If/When/How’s fund] enough, it's why is it necessary,” Susan Yanow, cofounder of Women Help Women, said. “Why is it necessary to have an entire group of lawyers and legal funds for something that shouldn't even be criminalized?”
Cases in which people are prosecuted for managing their own abortions are still quite uncommon in the US, and it’s difficult to quantify the number of women who try to self-induce abortions because they’re often done in the privacy of one’s home or in secret, Fuentes said. She pointed to one study that found that, across the US, about 7% of women attempt to self-manage an abortion at some point in their lives.
“What we do know, though, is that there have been people who have been arrested and prosecuted for being perceived as having self-managed an abortion,” Fuentes said.
As of September, there have been 24 cases of people prosecuted for self-inducing an abortion since 2000, according to Farah Diaz-Tello, senior counsel and legal director at If/When/How. And only Oklahoma, South Carolina, and Nevada have laws that criminalize self-managed abortions specifically.
Diaz-Tello said the number of legal cases or actual laws against self-induced abortions isn’t the point, though. It’s the rising legal stakes pregnant people face. And for people of color who already experience disproportionate rates of criminalization, that risk is even higher.
“There is no law in any of the 50 states that states it's illegal to drive while Black...right?” Yanow said. “It isn’t the language of the law per se. The reality is that as long as [self-managed abortion] is stigmatized and not understood, people can be criminalized for almost anything. They might not be able to be charged with murder, and be facing years and years in jail, but certainly a good district attorney that wants to, he’ll find something to charge a person with.”
People can end up in prison even in states where it is legal to undergo a medication abortion without the help of a medical provider. In 2019, prosecutors alleged a then-22-year-old woman in Ohio, Kalina Gillum, ordered abortion pills from an online provider to self-manage an abortion in the third trimester.
Gillum went to the hospital to seek medical attention for blood loss after losing a pregnancy. While Gillum was in emergency surgery, police and first responders entered her home and found fetal remains, her attorney, Yveka Pierre, told BuzzFeed News.
Gillum never should have been prosecuted because of Ohio law prohibiting criminal action against people for their pregnancy outcome, Pierre said.
But it happened to Gillum anyway. The young mother was arrested and charged with involuntary manslaughter, endangering children, tampering with evidence, and abuse of a corpse.
“If the state wanted to prosecute somebody, they could find a way to do it,” Elizabeth Nash, state policy researcher at the Guttmacher Institute, said of cases like Gillum’s. “The fact that people are being charged with all kinds of crimes shows the wide scope states are taking to try to find ways of prosecuting people who try to end their pregnancy on their own.”
Gillum was incarcerated for four months. Officials took her then-4-year-old son away from her. She pleaded not guilty in 2020 to all counts except the manslaughter charge, for which she was acquitted by Licking County Common Pleas Court Judge David Branstool in a jury trial. On July 15, Gillum was sentenced to community service and supervision, but she will no longer serve prison time.
Some of the crimes pregnant people are charged with are unrelated or treat the fetus like it has the rights of a child, such as concealment of a birth, feticide, neglect of a dependent, or chemical endangerment of a child. This can happen to people even if they unintentionally miscarry.
“If a baby isn't born healthy, but there's a miscarriage or stillbirth, the prosecutor at that point … [can] allege that the person did something to cause that loss,” Kidvai said, adding that because protecting pregnant people is such an opaque area of law, If/When/How’s fund must answer a need for expert witnesses and advice for defense attorneys and prosecutors to help them in their decision-making.
Gillum’s case is rare, but it’s not the only one.
Purvi Patel was the first person in the US convicted of feticide and neglect of a dependent for ending her pregnancy in Indiana without a doctor’s help in 2015.
A mother in Pennsylvania, Jennifer Whalen, went to jail for helping her 16-year-old daughter self-manage a medication abortion in 2014. When distance, cost, and insurance issues discouraged her from taking her daughter to a clinic, Whalen ordered abortion pills from a website. But the package didn’t include thorough information about the extensive bleeding the medication could cause, according to the New York Times. When her daughter bled heavily, Whalen took her to the hospital, which later reported the mother to child protective services. Whalen was charged by the Montour County district attorney with a felony and sentenced to 9 to 18 months in prison.
Neither Pennsylvania nor Indiana specifically outlaw self-managed abortion, but these women were prosecuted anyway.
“They can pile on different charges, they can make the penalty so extreme that the risk of going to trial is too much, and coerce innocent people to plead guilty to a lesser crime, so they don't face a life sentence or death penalty,” Lynn Paltrow, executive director of National Advocates for Pregnant Women, told BuzzFeed News. “That is your new mechanism for mass incarceration.”
As more people grow concerned about access to abortion clinics, coalitions of organizations, such as Plan C, have stepped up efforts to organize information on how people can get affordable pills in their zip code with or without the help of a clinician. The organization drove a mobile billboard truck around West Texas for three days leading up to SB 8 going into effect with information on how people can access abortion pills online.
Plan C's daily website traffic skyrocketed from about 1,000 to 15,000 visitors searching for information about medication abortion within the days after SB 8’s passage, and the site’s Instagram followers doubled, Elisa Wells, cofounder and codirector of Plan C, said.
For those looking to self-induce, Plan C directs people to AidAccess, Abortion on Demand, carafem, among others — services that mail abortion pills to patients. The site also directs people to If/When/How’s free Repro Legal Helpline, should they have concerns about the legal risks in their state.
And demand for information is occurring in states where abortion access isn’t even under attack. Christie Pitney, a licensed medication abortion provider in California, told BuzzFeed News requests for pills have skyrocketed in the last few weeks — a state with relatively few restrictions on abortion.
If/When/How’s executive director, Jill E. Adams, said the COVID-19 pandemic had already led to more inquiries about self-managed abortion “practically overnight,” even before the aftermath of SB 8.
Pierre reiterated that advocates have been preparing for years to support and protect the right to self-manage abortion. So have several well-known medical and legal organizations, including the American Bar Association, the American Medical Association, the American College of Obstetricians and Gynecologists, and Physicians for Reproductive Health, which have spoken urgently on the topic in recent years. Those groups have advocated to eliminate legal risks for people who self-induce, the scientific safety of medication abortion, and the need for medical providers to eliminate mandated reporting to law enforcement.
Work remains to be done, Pierre said, especially when it comes to addressing the trauma people like Gillum suffered after losing a child and experiencing the criminal justice system. And her fight continues: A notice of appeal in the case was filed Aug. 11 in what marks the next chapter in an already years-long judicial process for the young woman.
Pierre said she would like to see courts send a clear message that self-managed abortion cases should not be brought forward, in addition to better training for medical providers about their reporting requirements.
Fuentes added that many people opt to self-manage, even if they don’t prefer to do so, because they don’t have the necessary insurance coverage, are facing local restrictions, or don’t feel safe.
“The overarching concern is that people have low-quality access to abortion care,” Fuentes said. “Anytime a person who wants an abortion has to choose a method that isn’t what they prefer because they don’t have adequate healthcare access, that’s a failure of the healthcare system.”
Community awareness is also essential, Pierre said, to the understanding that self-managed abortion should not be cause for fear “of being caged for decades.”
“I think we can do a lot to be part of a community to support folks when they are criminalized,” Pierre said. “A lot of things happen in the darkness, and when only a few of us know it’s going on, it’s hard to shine a light on it.”