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No One Should Face the Death Penalty for Accessing Health Care

It was one of the first things anti-abortion politicians bellowed in the immediate backlash to Roe v. Wade being overturned: Women won’t face prosecution for seeking an abortion. They said it because they know that punishing people for making the best decisions for themselves is deeply unpopular. And yet, less than a year later, they are introducing bills that would do exactly that — bills that would allow prosecutors to send women to jail for ending their pregnancies. We know this is a strategy they’re using to push the envelope and experiment with how big the backlash will be.

If we’ve learned anything over the last several decades in the fight for reproductive freedom, it’s that we should watch what politicians do, not what they say. Unfortunately, their actions reveal the cruel reality they want to force on all of us. It’s clear as day that these politicians want to create a world where making decisions about your own body is a crime.

Since long before Roe was overturned, overzealous prosecutors have distorted laws to pursue an anti-abortion agenda by targeting pregnant people for making the deeply personal medical decision to end their pregnancy, disproportionately policing the bodies of people of color. Prosecutions of people who ended their pregnancy or helped someone access abortion occurred even with the protections of Roe in place. If/When/How: Lawyering for Reproductive Justice, which has worked for decades to help people facing criminal charges for accessing abortion for decades, catalogued 61 such cases between 2000 and 2020. And in the last few weeks, authorities arrested a South Carolina woman for allegedly self-managing her abortion.

Right now, prosecutors twist unrelated laws in order to prosecute people for ending their pregnancies, because only a handful of states give them the legal authority to prosecute someone for their own abortion. But anti-abortion legislators want to make it far easier for prosecutors to send women to jail for getting the health care they need. They are pushing new laws that would make it a felony for a woman to have an abortion. Some would even allow prosecutors to seek the death penalty.

Alabama State Rep. Ernie Yarbrough introduced such a bill in Alabama, saying “ If you look at Alabama law, you will see there is an exemption that says that abortion is not murder in our state. It’s time we change that.” And this is just one example of the trend we’re seeing across the country. Arkansas, Georgia, Kentucky, South Carolina, and Oklahoma also have bills that would allow extreme politicians to charge those who have had an abortion and try to put them in prison for doing so. Facing criminal charges for obtaining essential health care is horrifying, especially in states like Kentucky and South Carolina which allow the death penalty as a potential punishment.

Ashley Lidow, director at our colleague organization WREN, put it perfectly: “Pregnancy outcomes shouldn’t be criminalized.” We agree, and if anti-abortion politicians think they can push these laws without us fighting back, they are sorely mistaken.

With your help, we will do everything we can to stop these bills and other bans on abortion from passing. At the same time, we are determined to be prepared for any prosecutions that may come either as a result of abortion bans, which put doctors at risk for felony prosecution, or as a result of the new laws which threaten people needing care themselves. That’s why the ACLU just launched the Abortion Criminal Defense Initiative to ensure that those facing prosecution for providing, supporting, or seeking abortion care will not have to face these unjust attacks alone. We are working in collaboration with If/When/How and the Repro Legal Hotline, which has long supported people who are investigated or prosecuted for self-managing their abortions, as well as those who help them get the care they need.

We cannot allow these extremist politicians to succeed. We must fight for the world we want to see — one where everyone has the right and the ability to control their own bodies and shape their own future. The ACLU is working in the courts and state legislatures across the country to stop bills like these (and many more), and to work toward a world where everyone can get the care they need. But we need you to join us. Whether you live in a state where politicians are pushing laws to further criminalize abortion care, you can make a difference. Join the ACLU in fighting back against attacks on abortion access and other civil liberties across the country by signing up for information and action below.